결사의 자유의 관점에서 본 협동조합기본법

Abstract

Since Enactment of the Framework Act On Cooperatives (FAC) in Dec 2012, many cooperatives have been established in korea. Cooperative is association. So Constitution of Korea guarantees the freedom of association to cooperatives. Constitutional freedom of association is recognized for both natural persons and juristic persons as freedom of private associations. However, freedom of association is not recognized for public association. Therefore public association should not be included as a promoter of the cooperative. The question is that whether foreigners can be the promoters of cooperatives or not. Korean Constitution Article 21 has explicitly limited the subject of freedom of association in domestic persons. According to the ruling of the French constitutional Council, freedom of association is difficult to guarantee foreigners’ right. However, due to the fact that borders are disappearing now, community of South Korea should reconsider the foreigners’ right to promote cooperatives at the social, economic and cultural area. Article 21 of the Constitution prohibits the grant. Constitution has anticipated that the application of the national permission is required to obtain legal personality. A national government’s permission or an examination to requirements narrowed the way to promote the association. Prior to the enactment of FAC in the social, economic and cultural areas, freedom of association has been realized on a limited basis. After the enactment of FAC, constitutional freedom of association is more guaranteed. This FAC’s inevitable adoption of strict permission principle is a proper legislation, considering current korean social and economic condition.