民法改正試案에서의 法人設立에 관한 立法主義의 轉換

Abstract

This paper is a description of the contents and reason for the Section 32 and the related articles of the Draft of the Revised Bill of the Korean Civil Code(hereafter "the Draft") that prescribes a turnover of the Legislative system for establishment of corperation. But the comments about the reason for the Draft of the Revised Bill in this paper is not an Official Statement but is a merely personal opinion in my viewpoint that has been made participating in all discussion of the Commission for the Revision of the Civil Code. According to judicial precedents, the Section 32 of the Korean Civil Code now in force(hereafter "current Civil Code") take the Permission-system(in german term "Erlaubnissystem") that the authorities could decide to sanction or not the proposal of establishment of a corperation at its discretion. But according to the critical opinion against the judicial precedents that the Section 32 of the current Civil Code is a unconstitutional provision for the essential infringement on the freedom of association. Besides the provision(the Section 32 of the current Civil Code) is blamed for being an outdated and underdeveloped in the context of the today's world legislative trend that do not allow of intervention of the national power at least in establishment of nonprofitcorperation. Taking this criticism into account, the Section 32 of the Draft convert the Permission-system of the current Civil Code into Approval-system(in german term "Das System der Genehmigung") and the paragraph 3 of the Section 32 of the Draft prescribes that the authorities ought to approve the proposal of establishment of a corperation if the proposal satisfy the necessary conditions required by the paragraph 1 or the paragraph 2 unless the articles of the association infringe the honest public morals or social order.