우리나라 구분소유법제 연구의 효시 - 최종길 1970년 논문의 의의 -

초록

The first Korean article on aggregate building law theory is Chong Kil Tsche’s paper published in Seoul Law Journal vol. 11 no. 2 in March 1970, under the title of “Rechtsvergleichende und rechtserkennende Studie über das Wohnungsrecht(in English: Comparative and survey-based study of aggregate housing law, hereafter ‘the Paper’).” Though Professor Tsche had left only this one paper on the theme before he passed away at the age of 42 in 1973, the Paper is awarded meaning much more than as the first Korean article in this area of law. To begin with, it is worth noting that despite being the first one, the Paper was mentioned in a widely cited German standard commentary, thereby introducing abroad the emerging field of law in Korea. Such an example is rare to find in other legal fields, which could be partly explained in the light of the author’s vivid international exchange activities. However, the true value of the Paper should be found in its significant academic worth in and of itself. Firstly, it analyzed how Stockwerkseigentum, once denied by Pandectists in the tradition of Roman law, was revived as sectional ownership form of modern housing in Germany, France, and Japan due to social demand, skillfully using a comparative legal method. The results of the analysis are extraordinarily accurate and suggestive even by today's standards, more than 50 years later. Secondly, the paper scrutinized the legal situations concerning multi-family housing, which just began to take root in our society in the late 1960s, based on the actual documents of contracts. It summarizes how the legal problems caused by the absence or lack of related laws were resolved on-site, concluding that the final and desirable resolution should be possible through the enactment of overall systematic legislation. Given our terribly deficient research resources in the late 1960s, the achievements of the Paper without any prior research is remarkably exceptional and admirable. To understand how all these were accomplished, each reference cited in the section on legal history in the Paper is meticulously searched for and compared with the original text. And it could be confirmed that the lack of European literature was supplemented with Japanese literature, and plausibly supposed that Professor Tsche might have at least partially consult the original directly. Inspired by the Paper, a series of papers addressing the legal issues regarding aggregate buildings were published not only in practice but also at universities from the mid-1970s to the early 1980s. And the Aggregate Building Act in 1984 was finally enacted in Korea with the full support of the Korean Civil Law Society and the courts. By the way, several key issues raised in the Paper - such as the relationship between shared ownership and exclusive ownership of common areas, as well as the time and conditions for the establishment of sectional ownership - are expected to continue to be discussed in the near future.

키워드