구분소유적 공유의 법적 구성 - 상호명의신탁설과 공유설 -

Abstract

This study examined how co-ownership of divided ownership type should be constituted legally by comparing the theory of mutual title trust and the theory of co-ownership in terms of theoretical ground, strengths and weaknesses, and specific problems. The theory of mutual title trust established through judicial precedents does not give a clear answer, but there is also a skeptical position on whether the theory of co-ownership can be an alternative. Although the theory of co-ownership has a problem in its theoretical assumption, however, we found that it can explain easily issues such as transfer to a third party, void share, and legal land right, which are hardly explainable with the theory of mutual title trust. Like this, in order to solve the discrepancy that, with regard to the co-ownership relation of divided ownership type, the form of legislation cannot represent the substance of ownership in the legal relation, it is suggested: (1) to revise the Registration of Real Estate Act to simplify the procedure of dividing co-ownership of land; or (2) to add provisions on co-ownership of divided ownership type in the Civil Code. Then, rather than relying on judicial precedents or academic theories for the co-ownership relation of divided ownership type, we can apply Article 1-2 of the Act on the Ownership and Management of Aggregate Buildings, which was added on July 18, 2003 (Divided Ownership of Commercial Buildings) “1) If a building is divided into several building parts for use in any of ways listed below, each the building parts (“divided stores” hereinafter) can be an object of ownership as stipulated in this law: (1). The use of the divided store is a sales or business facility under Paragraph 6 of Subsection 2 of Section 2 of the Building Act; (2). The total floor area for the use of the sales or business under Paragraph 1 including the divided store in the building should be over 1,000 square meter; (3). Clear marks of boundary should be installed firmly on the floor; and 4. Each divided store should be assigned a building number and have a sign of the building number fixed firmly. 2) Boundary marks and the sign of building number provided in Paragraph 1 shall be stipulated by a Presidential decree.” Thus, for land co-ownership of divided ownership type, it is considered desirable to solve legislatively by adopting the legal theory of judicial precedents. If not, it is keenly necessary to supplement the position of judicial precedents assuming the theory of mutual title trust with the theory of co-ownership.