집합건물의 일부공용부분 판단기준에 관한 소고

The results of the classification of the section for common use and section for partial common use affect the exclusive exploitation and management authority of the common area, the recognition of the share right and the area ratio of the exclusive part based on the share right, etc. The provision to Article 10(1) of the Building Act stipulates that the common area of a building is either a section for common use or section for partial common use of a common part that is “clearly used for the common use of some unit owners” is a common part. In addition to the registration criteria, judicial precedents that apply and interpret this regulation have a system to determine whether they can be used for the common use of certain unit owners through “objective use and utilization relationships by structure.” This study pointed out that it is difficult to believe that the criteria presented by the legal provisions and judicial precedents are still acting as clear criteria in actual application. Since it should be understood that the basic form of the common area is to be provided to the use of the whole unit owner as a common area, it should be considered from the viewpoint of a special case when a part of the section for partial common use is recognized. From this point of view, the most basic criterion for determining whether a area falls under the category of a section for partial common use should be what the structure of the area is and how the area is actually used and managed by whom. In order to make such a decision, a comprehensive judgment should be made taking into account the location, shape, area, and structural specificity of the common part of the building, the purpose of using the common area, the potential for some common use, etc. In conclusion, the distinction between the two shall be determined in accordance with the above standards, and the section for partial common use that are obvious to be shared by only a area of the unit owner are considered as common parts.