도급건물의 소유권귀속에 대한 판례분석-수급인이 재료의 전부 또는 주요부분을 제공한 경우-

Abstract

The Korea civil act does not regulate who owns the worked building when the all or main part of building material for building construction is provided. Under article 664 of Korea civil act, a contractor has a right to receive a consideration for the results of the work and promises to complete a construction work. Even if a contractor provides the all or main part of building material for building construction, the contractor can’t own the worked building. This means that a contractor has only a right to receive a consideration for the results of the work to the person who ordered work. However a lot of cases assert that a contactor is the one who first owns the constructed building and this ownership is subsequently transferred to the person who ordered the work, if a contract is signed for the guarantee of a payment for the consideration for results of the work. If cases referring to works are considered carefully, those cases can be divided into two occasions: One occasion with a contract of work and the other occasion without a contract of work. A contractor who provided the all or main part of building material for building construction, basically has the ownership of a worked building if there exists a contract of work. But the person who ordered work, has a ownership of a worked building if there is a consent about above person’ ownership between this person and the other contract’s party(a contractor) or if a contractor is recorded on preannounced registration. However, if there exists no contract of work, for example, when not a person other than the land owner gets the go-ahead on building project, the ownership belongs to an applied person or a land owner case by case. This situation is a little changed after the enforcement of a act on the registration of real estate under actual titleholder’s name. If the contract of work is concluded, it is wrong for a contractor to have the ownership of a worked building in view of the character of this contract. the worked building also belong to the person who ordered the work. Likewise, there is no problem about a right to get the charges of works because a contractor has a right of retention, exceptio non adimpleti contractus and a right to demand creation of mortgage on building which is object of contract. Because of what’s explained above, a contractor has the stable position of this contract.