법인이 아닌 사단의 민사법상 지위에 관한 고찰 - 총유 규정을 둘러싼 민법 개정 논의와 관련하여 -

Abstract

One of the issues surrounding current discussion about amendments of the Civil Law Code is the regulation of an unincorporated association (Verein ohne Rechtsfähigkeit). Especially it is related to the controversy over the abolition of the collective ownership (Gesamteigentum). Accurate analysis and diagnosis of the legal status about the unincorporated association, of course, can lead to a appropriate conclusion. Here I reviewed critical studies on the collective ownership: it is an unprecedented legislation based on merely premodern theory, which cannot regulate various kinds of unincorporated associations, because actually they have the legal capacity (Rechtsfähigkeit). I tried to prove that these diatribes are not appropriate because they result from misunderstandings, and that the current composition of unincorporated association and collective ownership quite match civil law system in its way. Because the unincorporated association can’t have the title of the property, the property right is entitled to the sum of its group members whose shares are not permitted. It is natural the collective ownership is also a title of the proprietary right and should be possible to register its title on the registration book. Article 26 of the Real Property Registration Act is ticketed for it. And article 52 of Civil Procedure Code allows the unincorporated association to sue and to be sued in its name as an exception to article 51 based on the general premise that corporate juridical person such as incorporated association can be a partner in litigation. The abolition of the collective ownership can bring about the drastic change to this structure. Abolitionists,however, seem to take the problem lightly. Amendment discussions should be led by a deep understanding about system and functions over the association and ownership.