Korean Institute for Aggregate Buildings Law最新文献

{"title":"The First Korean Article on Aggregate Building Law Theory: Professor Chong Kil Tsche’s March 1970 Paper","authors":"Joon-Hyong Lee","doi":"10.55029/kabl.2023.48.25","DOIUrl":"https://doi.org/10.55029/kabl.2023.48.25","url":null,"abstract":"The first Korean article on aggregate building law theory is Chong Kil Tsche’s paper published in Seoul Law Journal vol. 11 no. 2 in March 1970, under the title of “Rechtsvergleichende und rechtserkennende Studie über das Wohnungsrecht(in English: Comparative and survey-based study of aggregate housing law, hereafter ‘the Paper’).” Though Professor Tsche had left only this one paper on the theme before he passed away at the age of 42 in 1973, the Paper is awarded meaning much more than as the first Korean article in this area of law. To begin with, it is worth noting that despite being the first one, the Paper was mentioned in a widely cited German standard commentary, thereby introducing abroad the emerging field of law in Korea. Such an example is rare to find in other legal fields, which could be partly explained in the light of the author’s vivid international exchange activities. However, the true value of the Paper should be found in its significant academic worth in and of itself. Firstly, it analyzed how Stockwerkseigentum, once denied by Pandectists in the tradition of Roman law, was revived as sectional ownership form of modern housing in Germany, France, and Japan due to social demand, skillfully using a comparative legal method. The results of the analysis are extraordinarily accurate and suggestive even by today's standards, more than 50 years later. Secondly, the paper scrutinized the legal situations concerning multi-family housing, which just began to take root in our society in the late 1960s, based on the actual documents of contracts. It summarizes how the legal problems caused by the absence or lack of related laws were resolved on-site, concluding that the final and desirable resolution should be possible through the enactment of overall systematic legislation. Given our terribly deficient research resources in the late 1960s, the achievements of the Paper without any prior research is remarkably exceptional and admirable. To understand how all these were accomplished, each reference cited in the section on legal history in the Paper is meticulously searched for and compared with the original text. And it could be confirmed that the lack of European literature was supplemented with Japanese literature, and plausibly supposed that Professor Tsche might have at least partially consult the original directly. Inspired by the Paper, a series of papers addressing the legal issues regarding aggregate buildings were published not only in practice but also at universities from the mid-1970s to the early 1980s. And the Aggregate Building Act in 1984 was finally enacted in Korea with the full support of the Korean Civil Law Society and the courts. By the way, several key issues raised in the Paper - such as the relationship between shared ownership and exclusive ownership of common areas, as well as the time and conditions for the establishment of sectional ownership - are expected to continue to be discussed in the near future.","PeriodicalId":399431,"journal":{"name":"Korean Institute for Aggregate Buildings Law","volume":"396 ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2023-11-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"139205134","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"A study on the position of a Lien holder in real estate auction procedures: Supreme Court Decision 2013Da84971, Decided on Jan., 29 2015","authors":"Sung-Wook Kim","doi":"10.55029/kabl.2023.48.1","DOIUrl":"https://doi.org/10.55029/kabl.2023.48.1","url":null,"abstract":"The title of this thesis is “A study on the position of a Lien holder in real estate auction procedures - Supreme Court Decision 2013Da84971, Decided on Jan., 29 2015 -”. It is not possible to accurately predict what problems will occur in the future at this point. However, if it is a system that regulates social order, a way to minimize the risk should be sought to prevent unreasonable consequences. In particular, since the lien system is a newly created system, if the existing problems are closely identified, it is expected that the lien system can be more reasonable and practical in the future. In this paper, the main contents related to the position of a Lien holder in real estate auction procedures and the improvement direction thereof were reviewed. I believe that If the lien extends the transition period after the registration of the start of the auction, it will not be possible to compete against the buyer in the auction process.","PeriodicalId":399431,"journal":{"name":"Korean Institute for Aggregate Buildings Law","volume":"31 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2023-11-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"139207161","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"A Study on Developing Regional Relative House Price Index","authors":"C. Maeng","doi":"10.55029/kabl.2023.48.245","DOIUrl":"https://doi.org/10.55029/kabl.2023.48.245","url":null,"abstract":"Recently, in Korea, the polarization of real estate prices by region has deepened, causing social and economic problems. In particular, the government's expansion of taxation on owners of multiple homes to stabilize housing prices led to the exacerbation of the real estate price polarization between the metropolitan areas and local regions. As a methodology for monitoring this phenomenon of real estate price polarization by region, this study is based on 3 house transaction types for 4 house types targeting 17 cities and provinces and affiliated administrative districts, tentatively named 'Regional Relative House Price Index’. The purpose is to calculate the 'RRHPI' for observing trends in relative real estate prices by region at the national level, suggesting brand-new directions for conducting research related to the regional polarization phenomenon.","PeriodicalId":399431,"journal":{"name":"Korean Institute for Aggregate Buildings Law","volume":"66 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2023-11-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"139200474","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Relationship between Land Use Rights and Unjust Enrichment: Supreme Court Decision of Aug. 25, 2022(2017 DA 257067) in a Perspective of the En Banc Judgement of the Supreme Court Decision of Nov. 28, 2019(2017 DA 294608)","authors":"Seungkyu Mo, Jewan Kim","doi":"10.55029/kabl.2023.48.81","DOIUrl":"https://doi.org/10.55029/kabl.2023.48.81","url":null,"abstract":"According to the Supreme Court's unanimous decision on August 25, 2022(2017 DA 257067), the general legal principles regarding shared property in civil law cannot be directly applied to the “shared relationship” of collective building land. Therefore, co-owners of divided land, who hold a reasonable share corresponding to the ratio of exclusive parts in the collective building, have a legal authority to use and profit from the entire land according to its intended purpose. As a result, a land co-owner who is not a divided land owner cannot claim unjust enrichment against a divided land owner with a reasonable share based on the land co-owner's share rights. The conclusion of this unanimous decision by the Supreme Court emphasizes the obligation of unjust enrichment for divided landowners based on two factors: (1) the emphasis on the substantive use relationship of land use rights and (2) the economic viability of this conclusion. This perspective appears reasonable. The Supreme Court’s viewpoint, as presented in the unanimous decision, assumes the “shared relationship,” which is the typical ownership structure of land use rights in collective buildings. However, it is necessary to examine whether there is a change in legal relationships in cases where non-co-owners divide and separately (or jointly) own rights such as ownership of part of the land, apart from the shared relationship. The focus of this paper, the Supreme Court’s decision on November 28, 2019(2017 DA 294608), addresses issues related to unjust enrichment concerning land use rights when a single collective building is situated on multiple separate lots. While acknowledging the legal and economic validity of the unanimous decision, this paper critically analyzes the decision on the obligation of unjust enrichment. It suggests the need for legislative measures to clarify and advance future judgements or legal relationships regarding unjust enrichment in land-use relationships.","PeriodicalId":399431,"journal":{"name":"Korean Institute for Aggregate Buildings Law","volume":"16 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2023-11-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"139199081","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Real estate disposition and the Effect of the Revocation of Fraudulent Transfer - Subject Case: The Supreme Court of Korea Decision 2015Da217980 on March 09, 2017","authors":"Young-gyun Cha, Sung-Wook Kim","doi":"10.55029/kabl.2023.48.223","DOIUrl":"https://doi.org/10.55029/kabl.2023.48.223","url":null,"abstract":"The title of this thesis is ‘Real estate disposition and the Effect of the Revocation of Fraudulent-Subject Case: The Supreme Court of Korea Decision 2015Da217980 on March 09, 2017-’. The obligor will be free to dispose of his own property at his will, and no obligee will be able to dispute it, but our civil law allows the obligee to interfere with the obligor’s liability in special cases in order to preserve the substantial value of the bond. Under the Korean civil law, the Obligee's Right of Subrogation to Obligor(the Subrogation Claim of a Creditor) and the Obligee’s Right of Revocation(the Revocation of Fraudulent Act) are in place. The Subrogation Claim of a Creditor allows the obligee to exercise the obligor's property rights on behalf of the obligor in the event that the debtor does not exercise his or her rights, thereby preserving the liability property. The Revocation of Fraudulent Act is the right that entitles the obligee to revoke fraudulent transaction and to claim restitution of its original status, in case an obligor prejudices and does harm to the obligee(s) by transferring his property to a third party and increasing debt and obligations over assets resulting in insolvency. The Revocation of Fraudulent Act under the Korean Civil Law was introduced by the Japanese Civil Law which was enacted following French models, and in the process, the concept of reinstatement was added along with cancellation. For this reason, a unique form of the Revocation of Fraudulent Act was developed which is basically similar to but different from that of France and Japan. On the basis of the relative nullification theory, the debtor cannot be a defendant in a suit to cancel the fraudulent act and considering the subjective scope of the judgment power in a suit to cancel an act of harm (article 218 of the Civil Procedure Act), in which only the beneficiary or the former beneficiary can be a defendant, the debtor is neither party or subject to a lawsuit (article 84 of the Civil Procedure Act) seems to be able to be regarded as having difficulty in settling the grounds for cancellation of the liability. This paper will examine the significance and limitation of the above decision, and also suggest the effective application of creditor’s revocation based on the relative effect of the revocation of fraudulent and the Article 407 of the Civil Act.","PeriodicalId":399431,"journal":{"name":"Korean Institute for Aggregate Buildings Law","volume":"34 6","pages":""},"PeriodicalIF":0.0,"publicationDate":"2023-11-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"139206014","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"A Study on the Silver Town Preference for Reserves by the Ministry of Defense","authors":"Kwang Shig Shin","doi":"10.55029/kabl.2023.48.171","DOIUrl":"https://doi.org/10.55029/kabl.2023.48.171","url":null,"abstract":"This study derives desirable implications that can be applied through an empirical analysis of the silver town preferences of reservists in order to improve housing supply, housing welfare, residential environment, and quality of life for reservists of the Ministry of National Defense in an aging society and reflects them in the military housing policy of the Ministry of National Defense. It is done. As a result of the study, it was found that internal characteristics were the most preferred, followed by program characteristics, relationship, and economic characteristics, while physical characteristics were the least preferred. First, men and women strongly preferred safety facilities, living convenience facilities, emergency medical care, regular checkups, and emergency support, and preferred health activities, silver activities, neighbor relations, and staff response. On the other hand, women preferred deadlines, residential independence, household activities, business management, and pastimes. Second, in terms of service years, those with 10 or 20 years or more prefer health activities and silver activities, while those with 10 or more years prefer emergency medical services, regular checkups, and medical support, and those with 20 or more years prefer safety facilities, living convenience facilities, neighbor relations, and medical support. I preferred staff response. In particular, for over 20 years, emergency medical care, regular checkups, and emergency support were highly preferred. Third, the Military Housing Policy Division under the Military Facilities Planning Directorate of the Ministry of Defense Resource Management establishes a military housing policy, and the Ministry of National Defense Facilities Headquarters reflects it in the guidelines for preparing basic design requirements for national defense and military facility standards, as well as working guidelines, standard plans, and standard detailed drawings, and the Military Mutual Aid Association It is reflected in the business plan of the real estate investment headquarters of the construction investment division, and it is believed that the morale of reservists will increase if unused military facilities are discovered and used as a silver town site.","PeriodicalId":399431,"journal":{"name":"Korean Institute for Aggregate Buildings Law","volume":"29 5","pages":""},"PeriodicalIF":0.0,"publicationDate":"2023-11-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"139206426","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"A Study on Provisional Contracts in Real Estate Transactions","authors":"Hong-Min Lee","doi":"10.55029/kabl.2023.48.109","DOIUrl":"https://doi.org/10.55029/kabl.2023.48.109","url":null,"abstract":"In transaction practice, cases where a provisional contract is concluded first in the process of concluding a real estate sale or lease contract are not rare. However, not only is there no law governing provisional contracts, but also neither theories nor precedents have yet provided a consistent explanation of the concept and content of provisional contracts. Therefore, legal issues surrounding provisional contracts are still causing confusions. Diverse problems are occurring in relation to provisional contracts such as the question of when the main contract has been concluded in cases where the main contract has been concluded after the provisional contract had been concluded, whether the legal binding force of provisional contracts can be acknowledged, and whether the provisional contract deposit paid should be refunded when the provisional contract has been canceled by one party unilaterally, for example. In order to solve such problems, various opinions have been asserted such as the argument that the types in which the expression provisional contract is used should be distinguished and the legal principles appropriate for each type should be considered, the argument proposing that a standard provisional contract for concluding a provisional contract should be prepared, presented, and used, and the argument that civil law regulations should be newly established to govern provisional contracts. However, it is difficult to view that such studies have resolved all the complex issues surrounding provisional contracts. In practice, there are various types of contracts concluded under the name of provisional contracts. Even cases acknowledged by precedents include ① cases where the provisional contract is a contract that has no difference in substance from the main contract or is a conditional contract; ② cases where the provisional contract has the nature of a reservation that imposes an obligation to conclude the main contract on one or both parties in the future; and ③ cases where the provisional contract was prepared as a basis for future negotiations and has the nature of a matter of consultation that are expected to be revised through future negotiations. These are viewed to be the difficult part of studies on provisional contracts. That is, all the various types of contracts concluded under the name of provisional contracts are recognized as a type of provisional contracts and it is sought to resolve all cases together. However, for legal relationships where the contents of the regulations can already be understood through existing explanations, such as reservations or conditional contracts, for example, it cannot be said that separate regulations are necessary just because the name provisional contract is used. That is, in order to provide effective standards for resolution of disputes related to provisional contracts, it is necessary to limit the concept of provisional contracts to a certain form. In this article, the meaning of provisio","PeriodicalId":399431,"journal":{"name":"Korean Institute for Aggregate Buildings Law","volume":"74 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2023-11-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"139207732","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Legal Tasks for Constructing Continuing Care Retirement Community(CCRC)","authors":"Tae-young Yoon","doi":"10.55029/kabl.2023.47.25","DOIUrl":"https://doi.org/10.55029/kabl.2023.47.25","url":null,"abstract":"Providing an appropriate residential environment for the elderly, who spend most of their time in their residence, is one of the most important tasks facing the aging society. In particular, the elderly’s physical function may deteriorate quickly, which makes it necessary to provide a residential environment that can cover everything from being able to live independently to being in need of medical care. In Korea, various housing policies for the elderly have been promoted based on the Elderly Welfare Act; however, pre-sale elderly welfare housing no longer exists due to disruptive operation, and silver town has become a place where only the wealthy can enter. In addition, nursing homes are considered as unwelcome facilities for the elderly which isolate them from society. Accordingly, some local governments in Korea have recently been actively promoting the introduction of the Continuing Care Retirement Community(CCRC), which has developed in the US at the level of “aging in place.” In this study, domestic implications were examined by referring to US, where CCRC first began, and Japan, which has recently actively promoted CCRC in order to revitalize the region. Although CCRC in US was established naturally in the market, Korean state authorities have actively intervened through the legal system to stabilize the elderly’s residence by considering that one contracting party is an elderly. In US, most of the CCRCs are operated by the private sector, as it is characterized by the establishment of a legal system not only to protect consumers but also to stabilize its management. In Japan, it is notable that the CCRC’s initiative itself is being carried out to overcome low birth rates and aging societies and to revitalize local areas to overcome problems caused by the concentration of population in the metropolitan area. Therefore, Japan’s legal system focuses not on management stability, but on the contents of the service and the eligibility of housing of the elderly. However, there is a fundamental difference from Korea’s elderly-related law system for low-income families, for it has legal system that oversees the residential environment of the elderly separably from the Elderly Welfare Act.","PeriodicalId":399431,"journal":{"name":"Korean Institute for Aggregate Buildings Law","volume":"26 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-08-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"116975071","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Contaminated Land, especially where Waste has been landfilled and Liability for the Defect of Goods: Focused on Supreme Court Decision 2017Da202050 Decided April 8, 2021","authors":"Sang Hun Kim","doi":"10.55029/kabl.2023.47.57","DOIUrl":"https://doi.org/10.55029/kabl.2023.47.57","url":null,"abstract":"In the contract of sale, warranty liability for defects has the character of incomplete performance in that the original obligation was not fulfilled and according to the general principle of compensation for damages, it is reasonable to regard the contents of damages as defect warranty liability as performance gains. For this reason, recently, the Supreme Court, through the Supreme Court's decision 2017da202050 Decided April 8, 2021(hereinafter referred as ‘the Judgement’), made a ruling in the case of the sale of land where wastes were buried, even if the seller was not at fault, the amount of waste disposal costs that exceeded the purchase price was clearly recognized as damages according to warranty liability for defects. This is meaningful in that it was revealed that the scope of compensation for damages under warranty liability for defects in the sale of specific goods could reach the performance benefit separately from the fault of the seller. However, it would have been a more faithfully reflected judgment if it had been judged together with the calculation of the scope of damages on whether the principle of equivalence still plays its role in calculating damages under warranty liability for defects. In particular, in view of the fact that warranty liability for defects is operated as a seller's no-fault liability in principle, it would be a fair and faithful interpretation to consider that it is possible to adjust the scope of compensation for damages under the principle of good faith in consideration of the buyer's responsibility for the occurrence of defects. Such an interpretation of warranty liability for defects will play a role in drawing attention to the seller's obligation to provide warranty against defects in the object of sale, especially in cases involving environmental issues such as waste landfill.","PeriodicalId":399431,"journal":{"name":"Korean Institute for Aggregate Buildings Law","volume":"104 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-08-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"114502018","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"A Study on the Relief Plan for Real Estate Lease Fraud Victims","authors":"Sung Wook Kim","doi":"10.55029/kabl.2023.47.1","DOIUrl":"https://doi.org/10.55029/kabl.2023.47.1","url":null,"abstract":"The title of this thesis is ‘A Study on the Relief Plan for Real Estate Lease Fraud Victims’. It would be difficult at the present moment to predict exactly what problems may arise in the future. However, there should be efforts to find solutions for problems related to regulation of public order so that the risk of causing unreasonable consequences can be minimized. Since Real Estate Lease system is something that is being newly developed, a thorough examination of past problems can lead to a future's system that is more rational and accords with substantial justice. I reviewed the amendments to the Housing Lease Protection Act, the Certified Arbitration Judicial Act, and the Appraisal Evaluation Act, which were recently passed by the National Assembly.","PeriodicalId":399431,"journal":{"name":"Korean Institute for Aggregate Buildings Law","volume":"56 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-08-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"131302537","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}