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구재군(Jae Koon Koo) 중앙법학회 2010 中央法學 Vol.12 No.1
This treatise deals with the legal problems of the exercise of a right of claim for sale, in relation to the judicial precedent of the Supreme Court of Korea 2009.3.26, 2008Da21549,21556,21563 (hereinafter "the 2008Da21549 precedent"). The Supreme Court of Korea decided on the requirement, the counterpart and the validity of the exercise of a right of claim for sale. "The Supreme Court of Korea gave a decision in "the 2008Da21549 precedent" that, first, the plaintiff notified the defendant of a right of claim for sale legitimately. Second, the plaintiff can exercise a right of claim for sale in spite of the land is not designated as the reconstruction area under the Act on the Maintenance and Improvement of Urban areas and Dwelling conditions for Residents(hereinafter "the Act on MIUDR"), in case that to plan a housing or a city development project is devised under the (former) Housing Construction Promotion Act. Third, the plaintiff can exercise a right of claim for sale(Article 39 of "the Act on MIUDR") even over the defendant who has only the land without a building. And last, the price of the land or the house includes the benefit of reconstruction in case of doing the exercise of a right of claim for sale. Especially, whether the plaintiff can exercise a right of claim for sale in spite of the land is not designated as the reconstruction area under "the Act on MIUDR" is the issue. The original(Seoul High Court) judgment decided on the premise that the designation of reconstruction area is the requisites for a right of claim for sale. The original judgment decided that the land is included in the designated reconstruction area. On the other hand, the Supreme Court of Korea decided that the plaintiff can exercise a right of claim for sale in spite of the land is not designated as the reconstruction area under "the Act on MIUDR", in case that to plan a housing or a city development project is formulated. I think that the land should be designated for the housing reconstruction area under "the Act on MIUDR", if the plaintiff can exercise a right of claim for sale. The original decision and the Supreme Court of Korea came to the same conclusion, but the Supreme Court of Korea did not put forth a convincing reason in regard to the designated reconstruction area. So, I disagree on the reason of the Supreme Court of Korea.
공동주택분양자의 하자담보책임기간에 관한 연구 - 헌법재판소 2008.7.31. 선고 2005헌가16 결정과 관련하여 -
구재군 ( Koo Jae-koon ) 한국외국어대학교 법학연구소 2009 외법논집 Vol.33 No.1
In this treatise I have studied the Period of Warranty of an aggregate building seller in relation to the decision of the constitutional court. Before a revision of an Housing Act on May 26, 2005, both the Housing Act and an Act on the Ownership and Management of Aggregate Buildings regulated the warranty of an aggregate building respectively. The Supreme Court of Korea ruled that the owner of an aggregate building can make a claim for warranty within 10 years including all parts of a building. A short-term warranty under the Housing Act does not have an influence on exercising a right of claim for warranty under the Act on the Ownership and Management of Aggregate Buildings. The National Assembly of Korea revised both the Housing Act and an Act on the Ownership and Management of Aggregate Buildings simultaneously on May 26, 2005, so the article 46 of the Housing Act precedes the Act on the Ownership and Management of Aggregate Buildings. Many scholars said that the revised Housing Act was unconstitutional, so a high court of justice asked for the decision of unconstitutionality. The Constitutional Court of Korea ruled that an article(an additional clause 3) of the Housing Act was unconstitutional. The Constitutional Court of Korea rejected the application that the article 46(1) and (3) of the Housing Act were unconstitutional, because the articles were not set forth as a premise in this case concerned. I think the articles 46(1) and (3) of the Housing Act are unconstitutional, so they should be ruled unconstitutional in case that the articles could be applied to the right case which satisfies the conditions when a lawsuit will be brought to the court someday.
퍼블리시티권에 관한 연구 - 국회에서의 입법논의와 관련하여 -
구재군 ( Koo Jae-koon ) 한국외국어대학교 법학연구소 2008 외법논집 Vol.30 No.-
The right of publicity holds an important position in our lives nowadays. One bill which takes aim at regulating the right of publicity has been put forth by members of the Korean National Assembly. The main subject of the bill is an introduction of the right of publicity in the Korean Copyright Act by revising the act. In this thesis, I discussed the major point of the bill and I proposed to revise the Copyright act and to enact a special law(< provisional name > the Act of the Right of Publicity Protection) to regulate the right of publicity. In this treatise I would like to advance a theory to regulate legal problems rationally arising from the right of publicity. This treatise deals with the legal nature of the right of publicity, the inheritance of the right of publicity, and treats whether the right of publicity is transferable or not. Protection under the right of publicity is not limited to natural persons. Legal persons also can be protected by the right of publicity. Not only celebrity but also non-celebrity can be protected by the right of publicity. The right of publicity can be restricted in some cases, for example, when the right is used in the non-commercial areas or in the field of study etc.