Since the launch of the participatory government, regulations on real estates such as lands and apartments have been intensified, and investors have turned their eye to commercial buildings, which are not subject to the regulations. As a result, free capitals in the real estate market are flowing in...
Since the launch of the participatory government, regulations on real estates such as lands and apartments have been intensified, and investors have turned their eye to commercial buildings, which are not subject to the regulations. As a result, free capitals in the real estate market are flowing into the commercial building sales market, and advertisements exaggerating the contents of commercial building sales are rampant, causing social problems. Thus, in order to solve these problems legislatively, Chapter I of this thesis presented the objectives, scope and methods of research. Chapter II discussed general theories on commercial building sales contracts, and discussed the legal theories of commercial building sales contracts focused on the current state and peculiarities of commercial building sales contracts. In this chapter, we discussed the meaning and legal nature of a commercial building sales contract as a legal structure focused on the current state and types of commercial building sales contracts, and analyzed commercial building sellers’ quality assurance and civil liabilities in consideration of the peculiarities of commercial building sales contracts. Commercial buildings are sometimes sold after construction, but in general they are sold before construction based on information in sales advertisements such as location, size and lot area. In addition, buyers make the down payment and a number of interim payments to the seller in advance while the building is under construction. As it takes a long time of construction from the sales contract to entry to the building, the completed building is often different from that planned on sales contract or contains defects. In case an established building is acquired by a sales contract, if the building is defective, Article 580 of the Civil Code "Provisions on Sellers’ Liability for Warranty against Defects" is applied. However, if a landowner has a constructor construct a building under a subcontract, Article 667 of the Civil Code "Provisions on Contractors’ Liability for Warranty against Defects" is applied. For these types of defects, the application of the provisions in the Civil Code does not have any particular problem in right relief. However, because the sales contract of a commercial building is made before the building is completed, defects in the building need to be handled differently from defects in ordinary sales contracts or subcontracts. Thus, with regard to sellers’ liability for warranty against defects, special provisions are contained in relevant laws in Korea including the Act on the Ownership and Management of Aggregate Buildings. In particular, this study analyzed and examined problems in the advanced sales system in connection to commercial building sales contracts and solutions for the problems. Chapter III discussed commercial building sales contracts and the independence of commercial buildings. In this chapter, first, we analyzed the independence of commercial buildings according to the type of commercial building sales contract focused on conditions for being a divided building under the Aggregate Building Act. For the divided ownership of an aggregate commercial building, the structure of the building should provide the independence of use. Concerning this, in case of a large?size shopping mall in which all the stores are opened, individual stores cannot be registered separately in the building register, and this causes many problems in transactions. Thus, when the Aggregate Building Act was amended on July 18, 2003, Article 1?2 (Divided Ownership of Commercial Buildings) was added as an exceptional provision for Article 1 (Divided Ownership of Buildings), which provides requirements for the establishment of divided ownership. The amended Aggregate Building Act was enacted on January 19, 2004. However, there are still several problems to be solved in the amended Aggregate Building Act concerning commercial building sales contracts and the independence of divided buildings. The amended Aggregate Building Act is focused on the clarity and fixity of the public notification method, renouncing the traditional view of structural independence. That is, if divided parts of a commercial building, namely, so?called divided stores are provided with a public notification method that clarifies the control area by solid boundary marks, building number signs, floor plans made by legally qualified experts, etc., they can be the objects of divided ownership although they are not equipped with structural independence. This is believed an advance noteworthy even just for the purpose of legislation and the basic attitude. However, the application of restrictions based on the area or use of buildings leaves problems to be solved. Concerning this, further legislative improvement is necessary. What is more, even before legislative improvement, there should be active and prospective movements in interpretation and application based on discussions on the purpose of legislation, established theories and judicial precedents. Lastly, Chapter IV drew conclusions from the discussions above, and suggested how to secure the independence of commercial buildings in terms of their use and structure, and directions for interpretation.
Since the launch of the participatory government, regulations on real estates such as lands and apartments have been intensified, and investors have turned their eye to commercial buildings, which are not subject to the regulations. As a result, free capitals in the real estate market are flowing into the commercial building sales market, and advertisements exaggerating the contents of commercial building sales are rampant, causing social problems. Thus, in order to solve these problems legislatively, Chapter I of this thesis presented the objectives, scope and methods of research. Chapter II discussed general theories on commercial building sales contracts, and discussed the legal theories of commercial building sales contracts focused on the current state and peculiarities of commercial building sales contracts. In this chapter, we discussed the meaning and legal nature of a commercial building sales contract as a legal structure focused on the current state and types of commercial building sales contracts, and analyzed commercial building sellers’ quality assurance and civil liabilities in consideration of the peculiarities of commercial building sales contracts. Commercial buildings are sometimes sold after construction, but in general they are sold before construction based on information in sales advertisements such as location, size and lot area. In addition, buyers make the down payment and a number of interim payments to the seller in advance while the building is under construction. As it takes a long time of construction from the sales contract to entry to the building, the completed building is often different from that planned on sales contract or contains defects. In case an established building is acquired by a sales contract, if the building is defective, Article 580 of the Civil Code "Provisions on Sellers’ Liability for Warranty against Defects" is applied. However, if a landowner has a constructor construct a building under a subcontract, Article 667 of the Civil Code "Provisions on Contractors’ Liability for Warranty against Defects" is applied. For these types of defects, the application of the provisions in the Civil Code does not have any particular problem in right relief. However, because the sales contract of a commercial building is made before the building is completed, defects in the building need to be handled differently from defects in ordinary sales contracts or subcontracts. Thus, with regard to sellers’ liability for warranty against defects, special provisions are contained in relevant laws in Korea including the Act on the Ownership and Management of Aggregate Buildings. In particular, this study analyzed and examined problems in the advanced sales system in connection to commercial building sales contracts and solutions for the problems. Chapter III discussed commercial building sales contracts and the independence of commercial buildings. In this chapter, first, we analyzed the independence of commercial buildings according to the type of commercial building sales contract focused on conditions for being a divided building under the Aggregate Building Act. For the divided ownership of an aggregate commercial building, the structure of the building should provide the independence of use. Concerning this, in case of a large?size shopping mall in which all the stores are opened, individual stores cannot be registered separately in the building register, and this causes many problems in transactions. Thus, when the Aggregate Building Act was amended on July 18, 2003, Article 1?2 (Divided Ownership of Commercial Buildings) was added as an exceptional provision for Article 1 (Divided Ownership of Buildings), which provides requirements for the establishment of divided ownership. The amended Aggregate Building Act was enacted on January 19, 2004. However, there are still several problems to be solved in the amended Aggregate Building Act concerning commercial building sales contracts and the independence of divided buildings. The amended Aggregate Building Act is focused on the clarity and fixity of the public notification method, renouncing the traditional view of structural independence. That is, if divided parts of a commercial building, namely, so?called divided stores are provided with a public notification method that clarifies the control area by solid boundary marks, building number signs, floor plans made by legally qualified experts, etc., they can be the objects of divided ownership although they are not equipped with structural independence. This is believed an advance noteworthy even just for the purpose of legislation and the basic attitude. However, the application of restrictions based on the area or use of buildings leaves problems to be solved. Concerning this, further legislative improvement is necessary. What is more, even before legislative improvement, there should be active and prospective movements in interpretation and application based on discussions on the purpose of legislation, established theories and judicial precedents. Lastly, Chapter IV drew conclusions from the discussions above, and suggested how to secure the independence of commercial buildings in terms of their use and structure, and directions for interpretation.
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