초록 열기/닫기 버튼
Not only many person, for example, landowner · contractor · subcontractor · architect · materialman · engineer · labourer etc., take part in constructing a building, but also the figures of participation are much various. Moreover especially because of the reason that a building is dealt as an independent real estate from land in our legal system, a very big problem arises in determining to whom the ownership on a completed building constructed by many participants attributes. In this article, firstly the contents of Professor Cheongheon Kim Jeung Han’s Theory is examined. He insisted that the person who ordered the work shall acquire the ownership of the building which has been constructed from materials supplied by the contractor for work. On the contrary, our judicial precedents have come to hold to the Theory that in the above case the contractor for work shall acquire the ownership of the completed building and then he can transfer that ownership to the person who ordered the work by delivering that building, unless two parties have made a special contract or there are some other peculiar circumstances. But the aspect of our judicial precedents not only conflict with the existing legal theory for changes in real rights on immovables, but also it turns out at variance with our actual realities and legal affections of common people. Secondly, it is observed that the theory concerning attribution of ownership on the completed building under contract for work may be altered, as the concept of ownership has shifted from the notion of ruling right on a thing itself to the notion of ruling right on the usability of a thing. If the notion of ownership is grasped as the exclusively ruling right on the usability of a thing, then it comes to be easy to understand that, away from the theory of annexing, the ownership of the completed building by the contract for work attributes to the person who ordered the work, not to the contractor for work, and furthermore the relation of ownership can be determined according to the special agreement between the person who ordered the work and the contractor for work. Thirdly, as widening denotation of the contract for work, it is studied that to whom the ownership of the completed building attributes in the event that construction work for building begins but soon construction work is interrupted for some reason, and then a third party takes over the structure under construction and finally he completes a building. By the way, the above matter contains theoretically many difficult legal problems. The cause can be thought that our law does not prepared specific and detailed legislative measures for the legal problems accompanying our peculiar legal system. Our legal system, apart from most countries of Roman legal system, has adopted the principle that the building is also one of independent immovables from land First of all, it wood be better to treat a structure under construction as an independent movables, not attached to land from the beginning of construction. And when a third party purchases or takes over that structure under construction and finally he completes a building, the judicial precedents have tried to handle the matter concerning attribution of ownership on the completed building solely with one standard. That standard is whether the structure under construction can be recognized as an independent building according to the social common notion or not. But this standpoint has a drawback that it can not deal properly with conflicting interests of person concerned. Therefore the attribution of ownership should be judged after synthetic and deep consideration concerning various matters, for instance, who the first builder is, and what kind of legal authority and relation he has, furthermore what kind of legal relation is contracted between the first builder and the third person who takes over a structure under construction and finally completed a building, etc. However, in case that it is unable or difficult to determine to whom the ownership is attributed, then the principle of attachment between movables( Article 257 of the Civil Act) can be applied by analogy. Lastly there is one thing to be added more. The matter to determine to whom the ownership on the completed building contains theoretically many difficult legal problems. Just on this account of reason, investigation of actual realities and studying judicial precedents are in need in this field, as Professor Cheongheon Kim Jeung Han had emphasized all the time in his life.
키워드열기/닫기 버튼
Kim Jeung Han, Ownership, Attribution Theory of Ownership, Contract for Work, Person who ordered the work, Contractor for Work
