건물의 양도시 하자담보추급권자 - 프랑스 법으로부터의 시사와 집합건물법 제9조의 적용 확대 가능성 - (The Beneficiaries of Constructor’s Guarantee after the Ownership Changed)

서지정보

· 발행기관 : 한국사법학회
· 수록지 정보 : 비교사법 / 15권 / 3호 / 259 ~ 293페이지
· 저자명 : 이준형

초록

The current article 1792 (1) of the French Civil Code lay down: “The constructor of an building is …… legally liable to the employer or the acquirer of the building.” It was actually amended in 1978 to reflect the jurisprudence so far developed, regarding the employer’s action for construction defects as accessory to the ownership.
In Korea, law provides for the counterpart in art. 9 of the Condominium Act as the articles on the general contractor’s defect liability (667 to 671 of the Korean Civil Code) correspondingly apply, notwithstanding any agreement favorable for, to the creator of a condominium. To the question, who is beneficiary of the liability laid down here, the Korean Supreme Court declared in 2003 that the right to remedies should belong to the current condominium owner, though she/he has no contractual relationship with the original creator.
After reviewing developments of law in France since 1978, as fruits of comparative law work, this these listed five possible suggestions on the action for defects of a condominium: (1)no sooner should the action be in principle deemed to move to a new owner than the property right is transferred, (2)to whom already belongs to a contractual remedy against the old owner from their transfer contract. (3)The damages to be claimed should be on principle own ones; it should be noted that qualification of the contract could have influence over the defendant’s foreseeability, especially when a mandatory does usually not expect any change of its mandator. (4)Moreover, the same status should be admitted to the owndership successor of other accomodations than condominiums; a simple usufructuary could make appeal to the action on art. 401 of the Korean Civil Code, according to current jurisprudence. (5)Last but not at least, there could be hardly found any reasonable necessity to restrict the doctrine to condominiums that the remedy should be transferred subject to the ownership in the above described way, the legislative sources of which the Korean Supreme Court found in art. 9 of the Condominium Act in the 2003 decision; hence is suggested here to widen the scope of application to all sorts of immovables subject to registration. In other words, the article should be an expression of a more general - constitutional - principle of property protection as well as of the state’s concern to citizens’ security.

영어초록

The current article 1792 (1) of the French Civil Code lay down: “The constructor of an building is …… legally liable to the employer or the acquirer of the building.” It was actually amended in 1978 to reflect the jurisprudence so far developed, regarding the employer’s action for construction defects as accessory to the ownership.
In Korea, law provides for the counterpart in art. 9 of the Condominium Act as the articles on the general contractor’s defect liability (667 to 671 of the Korean Civil Code) correspondingly apply, notwithstanding any agreement favorable for, to the creator of a condominium. To the question, who is beneficiary of the liability laid down here, the Korean Supreme Court declared in 2003 that the right to remedies should belong to the current condominium owner, though she/he has no contractual relationship with the original creator.
After reviewing developments of law in France since 1978, as fruits of comparative law work, this these listed five possible suggestions on the action for defects of a condominium: (1)no sooner should the action be in principle deemed to move to a new owner than the property right is transferred, (2)to whom already belongs to a contractual remedy against the old owner from their transfer contract. (3)The damages to be claimed should be on principle own ones; it should be noted that qualification of the contract could have influence over the defendant’s foreseeability, especially when a mandatory does usually not expect any change of its mandator. (4)Moreover, the same status should be admitted to the owndership successor of other accomodations than condominiums; a simple usufructuary could make appeal to the action on art. 401 of the Korean Civil Code, according to current jurisprudence. (5)Last but not at least, there could be hardly found any reasonable necessity to restrict the doctrine to condominiums that the remedy should be transferred subject to the ownership in the above described way, the legislative sources of which the Korean Supreme Court found in art. 9 of the Condominium Act in the 2003 decision; hence is suggested here to widen the scope of application to all sorts of immovables subject to registration. In other words, the article should be an expression of a more general - constitutional - principle of property protection as well as of the state’s concern to citizens’ security.

참고자료

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