중국과 대만의 민법상 권리능력 없는 사단

Abstract

This study has focused on the survey of the unincorporated Association in Chinese and Taiwan Civil Law and its suggestion to Korean civil Law. To attain the goal, we have investigated the situation in China and Taiwan, separtely. To begin with, we reviewed the unincorporated association in general in China: definition and its regulation, features, comparison with the distinct concepts, for example, legal person and partnership, establishing requirements and effects, types or classification, capacity for civil rights, capacity of civil litigation party for the application in legal affairs. Moreover the draft on the General Part of the Civil Code(2015) and other drafts by scholars were also reviewed. China use the term ‘any other organization’ or Unincorporated Organisation(非法人组织) to cover this association. For example, this is true of the Guarantee Law of the People's Republic of China(1995)(article 7), the Contract Law of the People's Republic of China(1999)(article 2, paragraph 1), the Civil Procedure Law of the People's Republic of China(1991)(article 41), etc. In particular, it has been claimed in China to recognize the legal status of the unincorporated organization as the person of the civil rights, separately and equally with the traditional natural or legal person. In addition, it also provides as follows in the Code of Civil Procedure(1991) as the current law : Any citizen, legal person and any other organization may become a party to a civil action(article 49). Next to China，we surveyed the unincorporated association(非法人團體) in Taiwan, one by one : definition and its regulation, main features, comparison with a legal person and a partnership, current law, main types, legal status : for example, capacity for civil rights, capacity of civil litigation party, right to name and attribution of the property, etc. In particular, it provides as follows in the Taiwan Code of Civil Procedure(1930) as the current law : An unincorporated association with a representative or an administrator has the capacity to be a party(Article 40, paragraph 3). Korea has some following provisions on the association which is not a juristic person : If a piece of property is owned collectively by the members of an association which is not a juristic person, it shall belong to collective ownership(Code civil article 275, paragraph 1, the title : Collective Ownership of Property). With regard to collective ownership, the following two Articles shall apply subject to Articles of an association or other covenants(para. 2 of the same article); As for the registration of real estate belonging to a clan, family, or association or foundation with a representative or manager, other than a corporation, such association or foundation shall be an entity entitled to file for a registration or an entity obliged to file for a registration(Registration of real estate act article 26, para, 1). Registration under paragraph (1) shall be applied in the name of the association or foundation by its representative or manager(para. 2 of the same article); Other association or foundation than a juristic person may, in case where it has a representative or administrator, become a party to a lawsuit in the name of such association or foundation(Civil procedure act article 52). It has been generally accepted in doctrine and jurisprudence : Outside the previous provisions, if it is not assumpted of the legal personality, the provision on the legal person shall apply by analogy. However, the specific issue is discussed between scholars. It was also suggested in the Civil Code reform of 2009 to 2014 in this point to reflect the situations of the jurisprudence and doctrine in the current law. The examples of China and Taiwan will give us a deep understanding about this problem and some plentiful suggestions de lege ferenda and de lege lata.