구분소유권의 성립요건과 시기에 관한 연구 - 대법원 2013. 1. 17. 선고 2010다71578 전원합의체 판결을 중심으로 -

Abstract

Recently the Supreme Court of Korea has ruled that the ownership of a unit of the condominium comes into existence only with independence of the condominium and juristic act for division of a building without entering in the building register in 2013, that broke it’s precedent of 2006. In this judgement, the adjustment of benefit between owners of the condominiums and a person having disposition authority on the site became a main issue by differing the effective time of the right of using a site for the building depending the effective time of ownership of a unit. Thus, this judgement authorized the right of using a site for the building to the owners not to a person having disposition authority on the site by moving up the effective time of the ownership of a unit than former precedents. But it is needed to present the theoretical grounds of effective time of the ownership of a unit and the legal characteristics of juristic act for division about requirements of the ownership of a unit as a change in a real right prior to the adjustment of benefit between either party. In this paper, it is aimed to propose not only substantial legitimacy but theoretical matching by examining and analyzing the theoretical problems about practical issues of two precedents of the supreme court. They are as in the following. The first, I concluded that as the ownership of a unit is also a kind of original acquisition, owners of the condominiums can acquire the ownership of a unit without registration on the building register under §187 of Korean civil code. The second, about the legal characteristics of the juristic act for division, it’s concluded that the juristic act for division is the juristic act for creation of real right among juristic act. The third, about the stage and time of the juristic act for division, the existence of juristic act for division is recognized at the stage of a notice for building division on the ground of that the legal intention of division should be expressed exteriorly. In these regards, I think the former precedent are based on insufficient theoretical grounds which decided that the registration in the building register was a requirement and effective time of ownership of a unit. Because it gives weight only to protection of the person having disposition authority on a site for a building.