민법상 합유에 대한 소고

Abstract

1. This study presents the solution of the problem for 'Joint ownership(合有: Eigentum zur gesamten Hand)' in the Korean Civil Law, based on the analysis and review for them under the perspective of the interpretation methodology. In particular, I examined the legal relationship of 'Joint ownership' by dividing it into the legal relationship for the Joint-ownership property and the law regarding the stake for joint ownership, and then examined the problem in applying joint ownership by dividing it into the disposal of the property of association and the jointly-inherited property. 2. In the Property Law of the Korean Civil Law, it defines three type of co-ownership - 'Common Ownership(共有: Miteigentum)‘, 'Joint Ownership' and 'Overall Ownership(總有: Gesamteigentum)‘ - which can't be found in other legislation case. Many criticism have been raised about such legislative attitude, however, it has retained considerable normative power till now. Also, it is thought to be logical and rational to stipulate the type of co-ownership based on the strength of human bonding. 3. 'Joint Ownership', the owning form of the 'Collective Association (Gemeinderschaft zur gesamten Hand)' was succeeded by Korean Civil Law, which was stipulated by German Civil Law and Swiss Civil Code, originated in the common property of the couple and jointly-inherited property of German community(Germanische Gemeinde). However, unlike the German Civil Law, it stipulates the common property of the couple and the jointly-inherited property as 'Common Ownership', and it only stipulates the owning type of the association as 'Joint Ownership'. It seems to be as a legislative error from the viewpoint of comparative law. The author of this article thinks that it is desirable to stipulate the owing of the couple or co-inheritors, whose strength of the human binding is definitely not weaker than other associations or incorporate body without ability of right, as 'Joint ownership', too. Due to this legislative mistake, the theory for the interpretation of the 'Sharing' of jointly-inherited property is confronted. 4. Regarding disposal of the stake of the Joint ownership, too, I think it is reasonable to restrict the disposal in order to comply with the nature of joint ownership. Therefore, even if there is the consent of all of the Joint owners, the disposal of the stake as a whole, as well as the stake for the specific property which constitutes the joint-owned property under the status independent from the legal status of the joint-owner, should not be acknowledged. 5. In the relationship with the Article 272 which is the general provisions of Joint Ownership in the Property Law and the Section 2 of the Article 706, too, the provisions for Association in the Law of Obligations, it has the provision conflicting with each other due to the legislative error. Various opinions are being raised related to the interpretation methodology for these two regulations. In my private opinion, it seems appropriate to regard the Article 272, the provision for joint ownership of the Property Law, as the general provision same with the judical precedence, and interpret the Section 2 of the Article 706, the business handling regulation of the associations, as the special regulation.