재건축 시 장기수선충당금의 귀속 문제

Disputes frequently arise with regard to the issue of the succession of Repair Reserve Funds (RRF) during reconstruction. It is unclear whether RRF belongs to the Homeowners' Association (Management Body) or the Reconstruction Association, when multi-unit buildings are demolished during reconstruction. In the absence of relevant regulations, the formation of precedents concerning the succession of RRF is crucial, but as of now a definitive precedent has yet to be established. The initial Supreme Court ruling adopted the ‘non-succession theory’, holding that in the absence of a homeowners’ association’s bylaw or resolution regarding the attribution of RRF, the Reconstruction Association does not automatically succeed to it. Subsequently, a lower court ruling attempted a new approach, departing from the Supreme Court’s position, by basing its decision on the principle of ‘mandate relationship’, leading to the rise of the ‘succession theory’. Most recently, a Supreme Court ruling was delivered that, although based on entirely different grounds, essentially adopted the succession theory by acknowledging that RRF could be attributed to the Reconstruction Association. The problem is that such a series of rulings lacks consistency and their legal construction is inappropriate. In this regard, the author of this study presents the following arguments. First, RRF is owned by the Homeowners’ Association, which is an unincorporated association, in the form of ‘collective ownership’, and therefore, a resolution of the general meeting of the homeowners’ association is strictly required for its disposition. Unlike the initial Supreme Court ruling that adopted the non-succession theory, the lower court ruling that adopted the succession theory rejected the principle of collective ownership and recognized the succession of RRF by the Reconstruction Association based on the ‘mandate relationship’ principle. This is an inappropriate approach that runs counter not only to the provisions on collective ownership in the Civil Code but also to the established precedents related to collective ownership overall. Second, in the most recent ruling, the Supreme Court ‘restored’ the principle of collective ownership. It ruled that even without a resolution on the succession of RRF, there is “room to view it as having the same effect as a valid resolution of the apartment homeowners’ association.”, given that the Reconstruction Association is the sole member of the Homeowners’ Association, and that the two parties’ intentions were “generally consistent”. This is also an undesirable approach taken by the court that needs to be reconsidered. Since the Reconstruction Association is the sole member of the Homeowners’ Association, it is required to apply the principle of collective ownership strictly by passing a resolution on succession in that capacity. Third, unlike the nature of collective ownership which remains intact upon the demolition of a building, the legal status of RRF is extinguished. While these funds are statutory reserves paid for the maintenance of a specific building, the demolition of said building renders that purpose impossible, resulting in their conversion into ‘general’ reserves. Therefore, to preserve the legal character of these funds and to overcome practical difficulties arising from the doctrine of collective ownership, a legislative solution may be considered.