집합건물 공용부분의 하자사고로 인한 책임의 주체 - 대상판결 : 서울중앙지법 2018. 1. 30. 선고 2017나61067 판결

This Article examines the allocation of tort liability between the owner’s association and the individual unit owner in common interest communities. Common interest communities are relatively new form of property ownership that is unique in its combination of two distinct ownership estates simultaneously. The unit owner owns both exclusive ownership of the individual unit and an undivided proportionate interest in the common elements as a tenant in common with the other co-owners. The owner’s association is a separate entity from the owners and their assertion. The owners exercised no control over the management of the property, and they have no realistic control over the association. Therefore, unit owner’s liability for tort claims arising from common elements due to negligence of owner’s association should reflect the degree of control exercised by the owners and be limited to proportionate ownership in common elements. The owner is liable only for an amount derived from his proportionate ownership in the common elements on his lack of control over the association. The Condominium Act and Civil Law does not specially address about limitation of owner’s liability arising from common elements. Regard of the owner’s undivided proportionate ownership, no realistic control in common elements, a matter of public policy to protect individual unit owners, a pro late allocation is more sense and more equitable. 주제어(Keyword):구분소유관계(common interest communities), 공용부분 하자로 인한 책임(liability for tort claims arising from common elements), 공유지분권(proportionate ownership in common elements), 구분소유자 책임(unit owner’s liability), 관리단(owners association), 집합건물법(condominium Act), 불법행위 책임분담(allocation of tort liability)