공동주택 분양계약상의 책임의 제문제

In this paper, I dealt with a range of subjects related to the liability in connection with the apartment sales contract. There are issues such as the legal nature of apartment sales contract, the scope of the third party affected by cancellation of a contract and the subject and duration of rights involved in guarantee against defect. First, there are an argument for contract of sale, an assertion for contract for any construction work and an opinion for special contract in the discussion of legal nature of apartment sales contract. I am convinced that the argument for contract of sale is valid, considering the contractual relationship among developer, constructor and acceptor of parceling-out, and the term 'buyer' for acceptor of parceling-out mentioned in the Law on Ownership and Management of Apartment Article 9 Section 4. Second, I am positive that the tenant fulfilling the House Tenant Protection Act requirements is involved in the third party of the Civil Law Article 548 Section 1 proviso in cancellation of apartment sales contract. However, the tenancy contract, object of discussion, is invalid because there is no lease signed with legitimately authoritative acceptor of parceling-out. Consequently, this tenant does not fulfill the House Tenant Protection Act requirements. Therefore, the tenant which becomes object of discussion does not correspond to the third party of the Civil Law Article 548 Section 1 proviso. The developer has an opposing power against the tenant with the cancellation of apartment sales contract. Third, I oppose to the precedent putting cancellation of apartment sales contract before provisional attachment creditor against ownership transfer registration claim. The Supreme Court rules that the cancellation of apartment sales contract is not against injunction effect of provisional attachment against ownership transfer registration claim. However, I think that it is judged only from the Civil Execution Act viewpoint. This provisional attachment creditor has to be protected as the third party of the Civil Law Article 548 Section 1 proviso from the Civil Law point of view, though the person cannot invoke the injunction effect. Fourth, there are an argument for acceptor of parceling-out and an opinion for subsequent purchaser, related to the issue on the subject of compensation claims and claims for damages due to defects. However, I contend that acceptor of parceling-out and subsequent purchaser may be the subject of rights involved in guarantee against defect respectively. The reason is that subsequent purchaser and acceptor of parceling-out can exercise each right respectively, according to the precedent of the Supreme Court acknowledging compatibility and feasibility of right based on ownership and right derived from contract.Last but not least, the Supreme Court does not rule that the Civil Law Article 670 or Article 671 excludes application of extinctive prescription to the case, in the issue about the duration of rights involved in guarantee against defect. However, I believe that the extinctive prescription regulation for buyer cannot be applied to the case because it violates the legislative intent of the Law on Ownership and Management of Apartment Article 9 Section 4, a one-way mandatory provision.