집합건물법의 법체계상 위치에 관한 관견(管見): 최근 일본의 성립사 연구성과를 계기로

초록

The Korean Collective Building Act, enacted in 1984, was drafted by private law professors with the helps of legally trained public officials; in Japan, there has been a widespread idea that the Japanese counterpart was necessary to implement urban planning law. However, recently released researches successfully came to refute this idea based on travaux préparatoires, which shows that the situations in two countries were alike: private law professors and judicial officials played a leading role from beginning to end; they primarily focused on the protection of buildings, not concerned with urban planning (II). In conclusion, some theses are summed up as follows: ① Collective Building Act belongs to one of enactments mentioned in the latter part of Art. 23 para. 1 of the Korean Constitution, which established a new institution ‘strata title’, a novelty of property. ② The entitlement needs a further justification, however, from the constitutional considerations, because of several innovations quite strange to traditional legal concepts. ③ In principle, other real estate statutes as lex specialis should be strictly and narrowly interpreted, in the same way as private law(lex generalis), to respect private autonomy (Ⅲ).

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