청헌 김증한 교수의 도급계약론

• 영문명: Professor Cheongheon Kim Jeung Han’s Theory of the Contract for Work : Focused on to whom a completed building constructed by the contract for work shall be attributed.
• 발행기관: 한국민사법학회
• 저자명: 이상태(Lee, Sang Tae)
• 간행물 정보: 『민사법학』제69호, 189~249쪽, 전체 61쪽
• 주제분류: 사회과학 > 사회과학일반
• 파일형태: PDF
• 발행일자: 2014.12.31

영문 초록

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 an

목차

Ⅰ. 서론

Ⅱ. 도급건축물의 소유권귀속론

Ⅲ. 소유권의 개념 - 물질적 소유권 또는 기능적 소유권

Ⅳ. 미완성건축물을 제3자가 완성한 경우의 소유권귀속론

Ⅴ. 결론

<참고문헌>

키워드

김증한 소유권 소유권귀속이론 도급계약 도급인 수급인 Kim Jeung Han Ownership Attribution Theory of Ownership Contract for Work Person who ordered the work Contractor for Work