민법상 합유에 관한 법적 고찰 - 합유 규정에 관한 민법 개정안을 중심으로 -

Abstract

Our civil act disciplines Joint Ownership of three types: Co-ownership originated in Roman law, Partnership-ownership derived from Germanic law, and Collective Ownership derived from Germanic communities. Partnership -ownership is a form of joint ownership in which several people own things in a joint Partnership. This Partnership-ownership is distinguished from the division in that the individuality of the members is more evident than the group unity. It is also distinct from owned Partnership-ownership in that it is a combination established for common purposes. In the meantime, problems have been pointed out that are difficult to solve with interpretation theory regarding the regulations on Partnership -ownership of civil act. The legislators of our civil act have regular regulations on the side of real rights without considering the provisions of Partnership-ownership in detail and regulations on Partnership-ownership on the side of claim causing conflicts between the two regulations. In order to solve the above problems, the 2013 Civil Code Amendment Committee sought to regulate the real right and claim relations without contradiction or conflict. In order that secure the normative power of civil law regulations, a civil law amendment on Partnership-ownership and a contract of partnership was prepared and the following opinions are summarized: First, the second subcommittee of the Civil Code Amendment Committee in 2013 sought to preserve the provisions of Article 271 on the Partnership-ownership of thing and clarify the definition. However, it is hard to find a legislative example in which a party recognizes Partnership-ownership only by its agreement without presupposing a combination of people. The Commission's proposals are not valid because recognition of Partnership-ownership under the arrangement of the parties could harm the interests of the owners' creditors. Second, the subcommittee removed the provisions of Article 271(2) that “With regard to partnership-ownership, the following three Articles shall apply in addition to the provisions of the preceding paragraph or contracts.” and tried to compulsory provisions. However, the provisions of Articles 272–274 should be regarded as having the nature of the compulsory provisions rather than the conventional view of interpreting it as non-mandatory provision. In this respect, Article 271(2) should be deleted for clarity. Third, amendment Article 272, proposed that Article 272 should add, in line with Administration of Jointly Owned under Article 265, “The administration of the article jointly owned shall be determined by a majority in shares of the co-owners.” However, it is not appropriate to do so by a majority and it is desirable to ensure that administration are agreed upon by all of the joint parties. Fourth, it is discussed whether the type of ownership of partnership property can be limited to the sum of Partnership-ownership. However, the amendments of Amendment Committee permit sole ownership in addition to Co-ownership and Partnership-ownership. These arrangements are not valid because they have the problem of failing to follow through on the notice principle and not being able to protect third parties who are creditors of Partnership. Finally, the amendment to the Civil Code Amendment Committee in 2013 to resolve the conflict between Articles 272 and 706 (2) of the Civil Code is considered a reasonable way to resolve the conflict between Articles 272 and 706(2) of the Civil Code.