法人設立行爲의 性質

Abstract

Civil Act § 40 provides “The founder of an incorporated association shall draw up Articles of incorporation containing …, and shall sign and seal it.” and the same Act provides “The founder of an incorporated foundation shall endow a certain property, and draw up Articles of incorporation containing …, and sign and seal it.” Although those articles do not clearly require minimum members of founders, the scholars unanimously agree that not less than 2 founders are required in an incorporated association, while only one suffices in an incorporated foundation. On that premises, scholars debate whether the characteristic of formation of association is contractual or uniward joint. The writer asserts that only one founder suffices in forming an incorporated association, and the uniward joint act is special in some respect but contractual in nature. He concludes if requires two persons are required in the light of characteristics of association, the required persons are members, not founders. The writer agrees with other scholars that only one founder suffices in incorporation of an foundation. But incorporating foundation raises special problems whether the ownership of the contributed real property transfers when procedure of foundation i.e., acquisition of the competent authorities’ permission and registration of establishment is concluded (incorporation time theory) or registration of ownership trans- fer is ended (ownership transfer time theory), The writer agrees with incorporation time theory. The writer introduces the precedents about the incorporated association/foundation on customary law. Almost all the scholars neglect those existence.