공동주택분양자의 하자담보책임기간에 관한 연구 - 헌법재판소 2008.7.31. 선고 2005헌가16 결정과 관련하여 - = A Study on the Period of Warranty of an Aggregate Building Seller - in Relation to the Decision of the Constitutional Court 2005Heunga16, July 31, 2008 -

다국어 초록 (Multilingual Abstract)

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.

참고문헌 (Reference)

1 권영성, "헌법학원론(2009년판)" 2009

2 강재철, "하자보수에 관한 조정사례"

3 곽윤직, "채권각론(제6판)" 박영사 2003

4 尹載允, "집합건물의 하자담보책임에 관한 실무상 쟁점" 한국법학원 73 : 48-75, 2003

5 이정민, "집합건물의 분양과 하자담보책임 －집합건물법 제9조와 관련한 몇가지 법적 쟁점에 관하여－" 38 : 2004

6 진무성, "집합건물 하자담보책임과 관련한 법률적 쟁점" 대한변호사협회 (356) : 161-184, 2006

7 오석락, "입증책임론(신판)" 박영사 2002

8 이시윤, "신민사소송법" 박영사 2004

9 노종찬, "공동주택의 하자담보책임기간"

10 여훈구, "공동주택 분양자의 하자담보책임에 관한 몇 가지 문제점, in: 민사재판의 제문제 제12권" 12-, 2003

11 윤재윤, "건설분쟁관계법" 박영사 2008