Review of the Criteria for Judgment of Independence in the Establishment and Existence of Divided Ownership

Since the 20th century, our society has rapidly urbanized, leading to the construction of various types of commercial aggregate buildings that emphasize transaction efficiency and customer convenience, especially in commercial architecture. Since 2003, the Condominium Act has recognized divided ownership for divisional stores without boundary walls, provided certain conditions are met. The establishment of divided ownership for divisional buildings requires structural and usable independence. As modern commercial aggregate buildings evolve rapidly into advanced smart buildings, driven by social and economic diversification and the maximization of profits, the physical, spatial, and facility-related complexity of these structures increases. This evolution complicates the existence and distinction of independence in their use and commercial transactions, thereby exacerbating confusion regarding the existence of their independent status. Consequently, complex issues arise in civil disputes concerning changes in real property rights related to the specificity and independence of divisional buildings. Court precedents reveal frequent disputes over divided ownership in sales contracts and auction procedures of divisional stores, the effectiveness of mortgage or lien rights on divisional stores, and disputes surrounding the establishment of divided ownership after remodeling. This paper examines existing theories and precedents regarding the independence of divided ownership in the establishment and existence of commercial aggregate buildings. After reviewing the factors for determining independence, the following conclusions were drawn: The Supreme Court's en banc decision (majority opinion) on January 17, 2013, regarding the requirements and timing of the establishment of divided ownership does not adequately reflect the multifaceted evolution of modern commercial aggregate buildings and user demands. Therefore, ① apart from divisional buildings for residential or lodging purposes, it is unnecessary to require a visible physical barrier as a structural independence; ② while the spatial elements ensuring exclusive use and dominion should be more explicitly required for usable independence, facility-related elements demanding exclusive comfort features and advanced safety devices should be excluded; ③ conversely, public elements such as the registration of building ledgers or devided registration should be clearly specified as definitive requirements for the establishment of devided ownership, thereby objectifying the process. Moreover, this study seeks to explore clear directions to reduce disputes in devided ownership by ensuring transparency in transactions related to real property rights of commercial aggregate buildings, reflecting the multifaceted evolution of modern commercial architecture.