住宅再建築事業의 賣渡請求權에 關한 硏究 = A Study on the Right of Claim for Sale in the Housing Reconstruction Project

국문 초록 (Abstract)

영문초록 :In executing the real estate development project, it is a very important element to secure the project site in an optimal period and method as well as make a feasibility study with a focus on cost-benefit analysis. In this connection, the current legal system adopts the land expropriation method and sale request method as the compulsory means for securing the project site according to the type, nature and public nature of the development project, and the typical project of the sale request method is the housing rebuilding project. Therefore, this study attempted to investigate and discuss the sale request system of the housing rebuilding project based on the 「Urban and Residential Environment Adjustment Law」. First of all, it sought to present the general understanding of the sale request system in the housing rebuilding project after making a brief investigation into the overview and public-law location of the housing rebuilding project. In addition, it attempted to address the requirement and method of exercising the right to request sale, the problem relating to the calculation of the sale request price very important in the request to sell the land and the its appraisal method, the problem of stakeholders in real estate subject to the request for sale such as mortgage or lessee and the like with an emphasis of the point at issue in existing judicial precedents and doctrines. And it sought to investigate several problems occurring in relation to the sale request system in the current 「Urban and Residential Environment Adjustment Law」 and probe its alternative. From a position of the project developer, the sale request system in the housing rebuilding project based on the current 「Urban and Residential Environment Adjustment Law」 the period of exercising the right to request for the sale of land is very brief and is prescribed as the fixed period. And the project developer may belatedly acquire the ownership right of the land due to the elongated period of a trial over the dispute and the like, which may become impedimental to pushing forward with the project. In case the project developer passes the period of exercise or lose a suit against request for sale, there is no other system for the opponent to acquire the ownership right though apartment housing is completed. There is no reasonable system to solve the dispute among stakeholders in real property subject to request for sale. From a position of the other party to request for sale of land, the person who owns either only land or the housing on it is not recognized as qualified as a member of the association and cannot join the association. Nevertheless, the person qualified as the member of the association should be compelled to sell his or her land to the housing rebuilding association. Because the person not agreeing to sell his or her land is not entitled to have a right to application for land sale request, he or she is an unstable position that he or she does not know when his or her land is sold. Though the opponent to request for land sale may have his or her ownership right until it is decided by the court, the landowner cannot use his or her land or receive its rent. In addition, there is a problem that the concrete evaluation method or evaluation criterion of the price asked for land including the present price of future value and development profit has not still been established in calculating the price asked for land, the core content in request for sale land. As regards the problems of the sale request system, the institutional reorganization is needed through the complementation of legislation after sufficient discussion and debate. To resolve these problem in the Korean land sale request system, this study attempted to present the following schemes by reference to the Japanese land sale request system: the need to extend the period of its exercise; the use of the arbitration system; the extension of qualification for the member of the housing rebuilding association in relation to the other party to request for land sale; the grant to the opponent of the right to application for the exercise of the right to request the project developer for land sale; the introduction of the rent payment system for the land use before the acquisition of its ownership right; the need for the reasonable and objective evaluation criterion of the market price in relation to the calculation of the price asked for land sale; the introduction of the legal settlement system for the mortgage or the license of real estate subject to request for land sale among stakeholders; the grant to the project developer of the exceptional right to expropriation in case of the rebuilding project taking on the character of public interest based on the redevelopment project such as the new town district and so on; and the like. It would be necessary to make a deep discussion, examination and complementation of the land sale request system in the housing rebuilding project in compliance with the Urban and Residental Environment Adjustment Law under the structure of the balance of the benefit and protection of the law between the project developer and the other party as well as the constitutional spirit of the preservation of citizens' property right guaranteed in the Constitution. Indeed, this study may have some limitation in that it failed to point out the problem in the land sale request system of the housing rebuilding project and present the fundamental alternative to it. But it is expected that this study will provide an opportunity for its institutional reorganization and supplementation as more diverse and deeper discussion and alternatives by expanding the breadth of understanding on the land sale request system and extending the framework of interest in it