중국 민법총칙이 신설한 비법인 조직에 대한 소고

Abstract

The General Provisions of the Civil Law of the People’s Republic of China (hereinafter referred to as ‘the General Provisions of Civil Law’) was officially enacted on October, 2017. The fourth chapter of the General Provisions of Civil Law prescribed the ‘non-incorporated organizations’. According to that legal regulations, the non-incorporated organizations have no legal personality but may lawfully engage in civil activities under their own names. They are the third type of civil subjects in parallel with natural persons and legal persons and include individual owned enterprises, partnerships, and professional services without legal personality. This study discusses the issues related to the non-incorporated organizations in order to accurately interpret the legal provisions concerning the organizations and ensure whose correct application in judicial and economic practice. A non-incorporated organization may have civil rights and bear civil responsibilities, or may carry out necessary civil activities in its own name. However, a non-incorporated organization does not have full capacity for civil liability, and if the property of the organizations is insufficient to pay off the debts, the investors or the founders shall bear unlimited liability for the debts of the organizations. The responsibility of a non-incorporated organization is unlimited responsibility, which is completely different from the legal person’s limited liability. The non-incorporated organizations shall register according to laws, and cannot qualify to run without the registration. A non-incorporated organization may determine one or more people to represent the organization for civil activities, but it is not absolutely necessary to determine a representative. The non-incorporated organizations have evolved from ‘the other organizations’ in existing civil legislation. They are different from Korean ‘unincorporated associations’. In conclusion, the non-incorporated organizations have the same connotation and overlap as the other organizations in the meaning of the civil subject. In the civil field, the non-incorporated organizations are the implied modification of the other organizations in the other civil law. However, in other areas such as economic law and administrative law, the revision of the General Provisions of Civil Law may not have normative effect. Based on this, I think that it is necessary to make legislative interpretations or amendments to the meaning and application of the non-incorporated organizations and the other organizations.