구분건물의 구조상 구분이 소멸된 경우의 권리관계와 변경등기 - 대상판결: 대법원ﾠ2013.3.28.ﾠ선고ﾠ2012다4985ﾠ판결 -

Abstract

According to Sentence 2012 Da 4985 Decision of Supreme Court on March 28, 2013, it is declared that when a structural partition ceases to exist among partitioned buildings corresponding to part of one building registered as a partitioned building, part of building corresponding to that partitioned building belongs to the joint ownership of registered person of the previous partitioned building. In relation to this, considering that there are certain restrictions on combination registration of a building, it is required to review if it is possible to apply for registration of alteration based on combination of a building, what the destiny of security rights attached to the previous partitioned building will be, and through what methods and procedures in a register book, the relationship of rights specified in substantial laws securities may be made public and exercised if security rights remain effective in equities of joint ownership for a combined building, and the like. This paper made a study focusing on these matters. As a result, the partition and combination of a building specified in Article 41 of the Registration of Real Property Act refer to changes in the scope of a building only in a register book without any modifications in physical structure of a building, so the Regulations on Restriction of Building Combination(Article 42 of the Regulations) do not apply to combination of a building, and accordingly there occurred discrepancies between registered matters and substantial relationship due to changes in structure and area of a partitioned building on account of combination, and contents of rights for a partitioned building are changed to joint ownership. So a conclusion was deducted that through analogical application of Article 41 of the Registration of Real Property Act, and Article 100-2 of the Regulations on Registration of Real Property, it is possible to apply for registration of ‘changes in description of a partitioned building‘ and ‘changes in rights’, and that through registration of alteration, a creditor may apply for auction with regard to equity of joint ownership instead of a partitioned building targeted for auction(Article 268, Article 139 of the Civil Execution Act).combination, and contents of rights for a partitioned building are changed to joint ownership. So a conclusion was deducted that through analogical application of Article 41 of the Registration of Real Property Act, and Article 100-2 of the Regulations on Registration of Real Property, it is possible to apply for registration of ‘changes in description of a partitioned building‘ and ‘changes in rights’, and that through registration of alteration, a creditor may apply for auction with regard to equity of joint ownership instead of a partitioned building targeted for auction(Article 268, Article 139 of the Civil Execution Act).