집합건물에 있어 구분소유권의 성립 - 대법원 2013. 1. 17. 선고 2010다71578 전원합의체 판결의 비판적 검토를 중심으로 -

Abstract

Three requirements to be needed to the establishment of divided ownership on the aggregate buildings are as follows: ① part of the building should be independent in structure on objective and physical point of view, ② part of the building should be independent in use on objective and physical point of view, ③ it should be that is legal act for dividing ownership. We can objectively check out independent in structure and use through apparent completion of aggregate building. On the other hand, there are no definite regulations and interpretation criterions whether legal act for dividing ownership will be or not. Traditional supreme courts decision about the time of the establishment of divided ownership was divided into two parts as follows: ①opinion that is enough for the establishment of divided ownership by declaring intention for dividing ownership, ② opinion that needs registration or registry for the establishment of divided ownership. But, the supreme court decision that was given on this study’s case on January 17,2013was made to solve above problem and provided interpretation criterions about legal act for dividing ownership. However, supreme court made some errors by deciding this case. So, in this study I would consider and point out an error about this decision. And then, I would attempt legal interpretation of the time of the establishment of dividing ownership. Finally, I would offer a legislative bill on the time of the establishment of dividing ownership. In this study, I gave my opinion about concept of legal act for dividing ownership as follows:legal act for dividing ownership is expression of owner of divided property intention about dividing own building. Whether legal act for dividing ownership was or not will be decided on entering the house register. On these premise, we should judge the time of the establishment of divided ownership multifactorially by the cause of acquisition of ownership.