민사법체계에서 조합의 당사자능력에 관한 검토

초록

The Civil Law generally deny the legal capacity(Rechtsfähigkeit) of an unincorporated association(Verein ohne Rechtsfähigkeit) only stating that its members own the property in the form of collective ownership(Gesamteigentum). But the provision 52th of the Civil Procedure Law acknowledge its capacity of party. Recently some scholars have strongly argued that the unincorporated association include the partnership. They say: the partnership is the association too, the difficulty lies in the lawsuit about it, the procedural law has its own reasons of interpreting, its capacity of parties is allowed in Germany and Japan. Korean civil law system distinguishes the unincorporated association from the partnership in the form of the ownership and its registration(collective ownership / partnership ownership) clearly. However, Germany where the theory of collective ownership originated didn't accept it in the BGB(civil code). Japan also doesn't approve of registration capacity of the unincorporated association, but has the provision corresponding to the provision 52th of the Civil Procedure Law. In comparison with foreign cases, Korean legislation on this is somewhat unique. The interpretation has its limits under the civil law system. If someone try to make an interpretation getting over it, he has to show the desideratum and the countermeasure. The precedents of Germany and Japan whose systems are different from that of Korea cannot be applicable directly to the concept of a unique unincorporated association in Korea. It is not profitable or urgent that the partnership is considered the unincorporated association under Korean civil law system.

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