Earticle

초록

영어

This research paper examines the en banc decision of the Supreme Court, 2003Da45267, decided on May 25, 2006, with a critical view.
At first, the Court approved that if the original seller in the sales contracts for each unit of an apartment building with individual buyers becomes financially insolvent, and assigns its rights on the contracts as well as building construction to the guarantee including a housing cooperative, and the guarantee resumes building construction through the succession procedure of the construction, the sales contracts between the original parties, the seller and the potential buyers through their purchase guarantee agreements, would be implicitly avoided because these parties have mutually agreed on avoidance of the contracts.
I disagree on the Court's reasoning which regards such "implicit intent" of the parties to avoid the sales contracts as "mutual consents" between them to terminate the contracts under the above-mentioned circumstances.
Such an interpretation of the parties' intent is beyond the statutory meaning of intent.
Second, the Court also held that when the sales contracts had been terminated, avoidance of the contracts would be affected only in the future, not retrospectively in the past, since tearing down the buildings, which have been constructed as the performance of the contracts, would be socially and economically detrimental to our communities.
However, such grounds of this holding is not persuasive. Unlike this reasoning, I would rather argue that legal obligations between the original contracting parties will be retrospectively terminated in case of avoidance of the contracts. Since the land, on which the building is built, is still owned by the original seller, even though avoidance of the sales contracts in units affects the validity of the contracts retrospectively, the seller does not need to demolish its building, but rather looks for new purchasers for the building.

목차

I. 사실관계
  1. 원⋅피고의 지위
  2. 주택분양보증계약의 내용
  3. 공사 중단 및 사업 관련 권리의 양도
  4. 분양이행의 선택과 승계시공
  5. 집행채권자들의 압류⋅가압류 등
 II. 원심과 대상판결의 판단
  1. 원고들의 청구원인과 피고들의 항쟁내용
  2. 원심의 판단
  3. 상고이유의 요지
  4. 대상판결의 판단
 I. 문제의 제기
 II. 분양계약 해제의 효과
  1. 분양계약의 법적 성질에 관한 학설
  2. 판례
  3. 검토
  4. 분양계약에 의하여 발생한 권리의무가 해제에 의하여 소급적으로 소멸하는 경우 대상판결의 법률관계
 III. 분양보증에 따라 승계시공이 이루어진 경우의 법률관계
  1. 분양계약이 해제되었다고 보는 경우
  2. 일반적으로 승계시공이 있다고 하여 묵시적 해제가 된 것으로 볼 수 있는지 여부
  3. 분양계약이 해제되지 아니하였다고 보는 경우
 IV. 결어
 참고문헌
 

키워드

저자

• 김창희 [ Kim, Chang-Hee | 원광대학교 법학전문대학원 부교수, 변호사. ]

참고문헌

발행기관

간행물

표지보기 관심저널 등록

• 간행물명

  원광법학 [Journal of Law research]

• 간기

  계간

• pISSN

  1598-429X

• eISSN

  2508-4526

• 수록기간

  1962~2025

• 등재여부

  KCI 등재

• 십진분류

  KDC 360 DDC 340