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A Study on a Claim for Sale with Reference to Reconstruction of an Apartment House- Focused on the Constitutionality and the Interpretation of Related Law -

  • Public Land Law Review
  • Abbr : KPLLR
  • 2007, 35(), pp.251-270
  • Publisher : Korean Public Land Law Association
  • Research Area : Social Science > Law

Lee Hie Houn 1

1백석대학교

Accredited

ABSTRACT

The purpose of a claim for sale with reference to reconstruction is to promote the public welfare. Does a claim for sale infringe on a sectional owner's basic right who is against the reconstruction of an apartment house? In the light of Übermaßverbot, the claim is constitutional because it does not limit too much his or her basic right such as the right to pursue happiness, the freedom of residence, the right of property and so on. And regarding a claim for sale, relating laws include Article 39 of City and residing environment maintenance law and Article 48 of Law on possession and management of a gathering building. It is desirable to interpret these laws as following: prior to exertion of a claim for sale, notice should be given. The subject of the notice is those who push forward the reconstruction, the other party of a sectional owner who was against organization of reconstruction association and his or her successor. Also the notice should be given without hesitance once the association is organized and there are no restrictions as to its number of times. It may be done in writing or conveyance by public announcement. A sectional owner who was given the notice should answer within two months whether or not to participate. Extension of the period of two months is permissible, but shortening is not. If a sectional owner who was given the notice does not answer within two months, it is interpreted that he or she means not to participate. Those who have a claim for sale are a participator of reconstruction and an appointed purchaser. Their the other parties are a sectional owner, his or her successor and a joint owner and so on. The claim should be exercised to the other party's a sectional ownership and the use of a lot collectively. There are no restrictions as to how to exercise a claim for sale, and the exertion should be done to all the objectors within two months from the deadline of answer. Otherwise the claim extinction. On the other hand according to Clause 4, Article 48 of Law on possession and management of a gathering building, they have no rule concerning details of market price. Therefore the price is set by mutual agreement of party concerned, and when that is not possible it has to be set based on valuation of sectional ownership and the use of a lot at the time of exertion of the claim. Also under the requirement according to Clause 5 and 6, Article 48 of Law on possession and management of a gathering building, the court of justice prescribes that proper period with reference to delivery and a claim of repurchase have to be given to some few of those are against the reconstruction. A person who has a claim for sale with reference to reconstruction has to exercise the claim according to requisites and process of the law mentioned above.

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