集合建物 垈地使用權의 一體不可分性

Abstract

Where several sections into which one building is divided in structure may be independently used, each section may be the object of independent ownership under the provisions of Act on the Ownership and Management of Aggregate Buildings ("the OMA Act"). In this case, one building is said to be an aggregate building, and a divided section in structure is said to be a sectional building. The right to use site means the right which a sectional owner has on the site of a building so as to own his section of exclusive ownership, and the site right means the right which a sectional owner shall not dispose the right to use site independently from a building. A right to use site includes ownership, a usufructuary right, the right of lease and so on, and it is not necessarily to be a registered right without exception. In addition, the usufructuary right that a purchaser has by possession can be a right to use site, which did not get the registration The OMA Act prescribes indivisibility of section of exclusive ownership and right to use site. A sectional owner's right to use site shall follow the disposition of his section of exclusive ownership, and a sectional owner shall not dispose the right to use site independently from his section of exclusive owhership. Provided, that the same shall not apply if specified otherwise by the regulations and a notarized document. Furthermore, the prohibition of independent disposition shall not be used as a defense against a third party who has acquired real rights in good faith unless the registration thereon is made[The Article 20(1), (2) (3) of OMA Act]. The purchaser paid full price of the site in the sectional building, but not completed the registration, and the purchaser did not acquire the ownership of site. In this case, the usufructuary right that the purchaser has by possession becomes the right to use site, and it shall not dispose the right to use site independently from his section of exclusive ownership, even if it is the right that the purchaser acquires in the future. And, the Supereme Court ruled in the 98da45652 decision. Where the usufructuary right that the purchaser has by possession becomes a right to use site, if it is the right of site that the constructor acquires in the future, after he did ownership transfer registration for his section of exclusive ownership, it cannot dispose of a third party who does not acquire the section of exclusive ownership. The act of disposition that the constructor violated in this does not have valid.