This study intends to present both the right understanding and the framework of interpretation for the whole legal problems regarding the right of sale claim of rebuilding business. Also, intends to present both a problem of a system of sale claim acc...
This study intends to present both the right understanding and the framework of interpretation for the whole legal problems regarding the right of sale claim of rebuilding business. Also, intends to present both a problem of a system of sale claim according to the existing law and the alternative proposal. Through that, this study intends to plan the balance of the benefit and protection of the law between businessman and disapprover. Also, intends to try to find a reasonable solution to a dispute to reduce the period of rebuilding business as much as possible.
Since the 1960's, the remarkable development of the industrial economy has resulted in the concentrative influx of the population in metropolis. Rapid expansion of population caused a problem of the lack of houses, which are residence space. To fulfill short houses, apartment houses mainly of low-rise have been built in large quantities in a short period since the 1970's, in spite of falling-behind construction methods, supported by “building construction ordinance” and “promotion law for house construction”, etc. Apartment houses, which were newly built in that period, have begun to be old and inferior since the 1990's, and those buildings faced the danger of collapse, not bearing the possible endurance years, with the old and inferior infrastructure. That has resulted in a serious social problem.
Fortunately, they revised an “enforcement ordinance of promotion law for house construction”. Thanks to the revision, it is possible for apartment houses less than twenty years to be rebuilt. Those revitalized rebuilding business have been fallen to means to the speculation for investors, and also grown up to the main offender in raising of apartment prices.
Because of the above situation, our government announced and enforced the powerful regulation policy of rebuilding. However, housing association for rebuilding business had troubles with disapprovers, which caused the delay of business. Finally, housing association should give up rebuilding business without legal exclusion of disapprovers.
The right of sale claim of rebuilding business by the existing law of city and residential environment maintenance was introduced for the purpose of the need of legal exclusion of disapprovers. However, on the side of businessmen, the right of sale claim of rebuilding business by the existing “the law of city and residential environment maintenance” has problems as follows: First, The actual period of the right of sale claim is very short and unchangeable. Second, when they get their properietary right late due to the long term of trial period, they will have a difficulty in doing their business. Third, there is no reasonable solution system for parties concerned of real estate, who are aimed to sale claim. On the side of the other parties in sales claim, there are problems as follows: First, in case they have only land or only building, they are unable to join in members of the association because the price of members of the association are not recognized. However, they are forced to sell over to housing association for rebuilding business. Second, disapprovers are not endowed with the right of application for sale claim. Therefore, disapprovers are in a unstable position that they never know when the right of sale claim is exercised. Besides, in case of calculation of the prices of sale claim, which are the essential contents in sale claim, there is a problem that concrete valuation methods or standards for the prices of sale claim, including development gain and actualization of future value, are not established.
Regarding these problems of the right of sale claim, we need of the institutional maintenance from legislation repletion, by way of sufficient discussion and debate. So this study presents the improvement methods regarding the above problems as follows: The need of extension of the actual period. The extension of qualification for members of the housing association for rebuilding business regarding the other parties in sales claim. The endowment with the right of application for sale claim regarding disapprovers' businessmen. The need of reasonable and objective valuation standards regarding calculation of the prices of sale claim. The introduction of legal solution system for parties concerned, for example, the mortgage and tenancy for real estate of other parties concerned of sale claim. The endowment with eminent domain in case of public interest corresponding to redevelopment projects, such as New Town District. However, I regret that this study also has a limit: I had a hard time of analyzing judicial cases because those cases are not offered to the public.
Therefore, we need the presentation of more reasonable methods through case analysis based upon judicial precedent. And regarding the right of sale claim of rebuilding business by the law of city and residential environment maintenance, we need in-depth examination and study constantly, with a view to the mind of guarantee of property right, which right is protected by the constitution, and also the balance of the benefit and protection of the law between businessman and disapprover.