대지권 미등기를 둘러싼 집합건물의 합리적 규율방안에 관한 소고 -집행법적 시각에서 구분소유권⋅대지사용권⋅ (근)저당권⋅(경매)매수인 간 합리적 관계 시각을 중심으로-

This study focuses on the issue commonly referred to as “the reasonable relationship between the exclusive ownership portion of a unit building and its land-use right in cases where the land ownership (land right) has not been registered”, encompassing the discussions of dependency and inseparability between these rights. The analysis is conducted from the perspective of establishing a rational legal relationship among sectional ownership rights, land-use rights, (mortgage) security interests, and purchasers at auction, particularly within the context of enforcement law. Despite the fact that numerous disputes have arisen at the compulsory execution stage, this topic has not yet received sufficient scholarly attention. The core findings of this research are as follows. First, regarding the rational relationship between sectional ownership and land-use rights, a comparative legal analysis was conducted with reference to Germany, the United States, and Japan. (ⅰ) It is reasonable to interpret Article 20(1) and (2) of the Korean Act on Ownership and Management of Condominium Buildings harmoniously, preserving the meaning of each clause. (ⅱ) In examining possible legislative or institutional approaches to enable rational separation and disposition between exclusive ownership and land-use rights, several legislative proposals were reviewed. A reasonable amendment would clarify that “the land-use right of a unit owner shall follow the disposition of the exclusive ownership portion held by that owner,” and further, “the same shall apply even when a prior mortgage or other security right exists on the exclusive portion,” thereby harmonizing both paragraphs of Article 20. Second, in cases where registration of ownership preservation or transfer for the exclusive portion has been completed, but registration of the land share transfer has been delayed, if a condominium developer has purchased the land and taken possession for the purpose of construction—although ownership transfer has not yet been registered—the developer nonetheless retains the right to occupy and use the land. Third, when a mortgagee executes the land separately due to the non-recognition of a collective auction right (integrated auction claim), resulting in the separation of land ownership from sectional ownership, the landowner's strong rights such as building demolition may justify allowing the unit owner to demand the sale of the land or, conversely, enabling the landowner to purchase the sectional ownership at market value. Regarding the relationship between sectional ownership and (mortgage) security rights, first, if a mortgage is established only on the exclusive portion, it is reasonable to interpret that “the effect of the mortgage extends not only to the exclusive portion but also to the corresponding land-use right”. Second, since the mortgagee's right influences the land portion even without registration, it is valid to recognize the mortgagee's authority to enforce a collective auction covering both the exclusive portion and the land-use right, along with the exercise of preferential repayment rights. Concerning the relationship between (mortgage) security rights and purchasers at auction, first, it is difficult to regard the purchaser as unjustly enriched when the mortgage was established only on the exclusive portion. Second, if a purchaser acquires ownership registration for the land share despite the land value not being appraised in the auction price, such a case does not constitute unjust enrichment. Finally, in the relationship between sectional ownership and purchasers at auction, first, the possession and use rights held by the successful bidder should be regarded as constituting the land-use right. Second, if the developer originally failed to acquire the land-use right, a purchaser acquiring ownership through the execution of a mortgage on the exclusive portion likewise does not acquire the land-use right. However, if the developer had initially acquired the land-use right, the purchaser through mortgage execution shall also acquire that right.