민법상 재단법인설립에 관한 비교입법사적 연구

Abstract

Recently, there is a growing interest in foundation corporations, and legislative research and discussions on this field are actively progressing. In this course, the current legal system and content should be first identified. Foundations have long historical roots. The foundation corporation that we today perceive in the legal sense - namely, the foundation corporation as a legal entity with authority and power - is the product of the 19th century western law science. The German Civil Law faithfully reflected this concept, strictly distinguished between the corporation and the foundation corporation and differently specified the conditions for the establishment of both entities. The German Civil Law, when enacted, required the competent agency's approval for the establishment thereof and other requirements. Written methods were required, the establisher's right to withdraw was guaranteed and when the establishment was approved by the agency, invested assets were required to be transferred to the entity. In the case of the act of establishment associated with disposition by death, the approval application method by the heir apparent, etc. was specified. The ownership of invested assets is retrospectively returned to prior to the commencement of inheritance. Meanwhile, the Japanese Civil Law unified the establishment conditions of the corporate association and the foundation corporation, required both entities to obtain the approval of the competent agency, and provided that in the case of the foundation corporation, the establisher should write the articles of association. If the establisher does not define matters other than essential contents such as the objective of establishment and assets, they should be defined by the court through the filing of claims by interested parties, etc. Where the agency gives approval, the donated assets shall belong to the corporation. The donated asset by the will shall be retrospective to the effective time of such will, and shall belong to the corporation. Regarding the establishment of the foundation corporation, the two nations' laws have their respective characteristics in terms of structure and type, but they were found to be very similar in terms of contents. This understanding is justified by the fact that the drafter of the Japanese Civil Law much referred to the German Civil Law, especially, the first draft. Under South Korea's Civil Law, regulations on the establishment of a corporation were enacted based on the old civil law Japanese Civil Law, but many differences are shown in the actual corporation establishment course such as the method of distinguishing profit from non-profit, conversion into registration establishment requirements, and the method of changing the foundation corporation's articles of association. These changes reflected the then domestic and overseas civil law science evaluation after the implementation of the Civil Japanese Law, a step forward. As such, under the civil laws of Germany, Japan and South Korea, their respective corporation systems retain their independence and yet are closely related to one another, and with this understanding, the future changes, especially, recent discussions on the amendment of South Korea's Corporation Act draw more attention.