조합채무에 대한 조합원의 책임 - 민법 제712조ㆍ제713조에 대한 새로운 해석의 시도의 재조명 -

Abstract

The above external effects between creditors of the partnership and partnership members are summarized as below: 1. Partnership members’ property relationship is a joint ownership, and it can be found to consist a sort of a system of vicious circle that partnership relationship should again be reflected to understand contents of joint ownership. As a result, the rules about joint ownership of real rights with receivables of the civil law cannot help being applied to the partnership property relationship indivisibly. Therefore, if several individuals jointly purchase real estate and purchasers aim at running joint businesses by mutual investment and distribute profits, the real estate belongs to the same enterprise. Meaning, it will be regarded as the joint ownership of the partnership members. 2. As 712 and 713 of the civil law cause a lot of legal difficulties on the properties of the dept of the partnership by assuming an ambiguous attitude toward partnership members’ responsibilities, it will be reasonable that each partnership member admits joint responsibility in the responsibility as their individual property, according to the principle of the joint ownership. It is reasonable to view the responsibility for the joint ownership as the time limit responsibility, since the individual partnership members only have the abstract share of the joint ownership shares until the partnership is dissolved. The partnership is an organization that is combined for a joint enterprise. Actually, because it is mostly applicable to the merchants, there will be many cases that joint responsibility about the individual responsibility of each partnership member is admitted, according to Article 57, Clause 1 of the Commercial Law. 3. Despite that partnership contract is the basic legal system, which is the basis of Article 712 of the Corporation Law, that defines individual members’ responsibility according to compensation for loss, will be unfair as it results in overprotection of the partnership members when compared to the rules of the Commercial Law on the responsibilities of unlimited partners in unlimited partnerships and general partners in limited partnerships. Therefore, Article 712 needs to be reconsidered basically in the theory of legislation and should have been reconsidered before. Eventually, if a person of partnership members is insolvent regardless of any case, other partnership members have liability for performance about this. The problem that Article 712 is applied cannot help leading to the problem to interpret Article 713. 4. The provisions of Article 712 and 713 should be regarded as defining internal share rates of debt of the partnership among partnership members. Furthermore, in the external relationship, which is the relationship between creditors and partners, they consider that the responsibilities of partnership members according to the Civil Law is divided liability, while the responsibility of employees in unlimited partnerships and limited partnerships according to the Commercial Law consists of joint responsibility of invisible debt. So there is a question about what the basis is, whether the partnership members should be protected more than the creditors. The rules about the legal relationship about partnership is the general rule when compared to the legal relationship defined by the Commercial Law. Therefore, it cannot be thought that the Commercial Law strengthened the responsibility. The division into partnership according to the Commercial Law and the Civil Law is ambiguous. As long as there is no special basis that should protect partnership members more than necessary, debt of partnership members should be regarded as joint debt in the receivables, and dept relationship between creditors and partnership members should be regarded as the external relationship. The creditors can charge each partnership member except the debtors without the capacity to affect performance for the total amount of receivables. 5. As the right relationship of persons having partnership-ownership is basically the right relationship of joint ownership, the obligation relationship should basically be regarded as the indivisible obligation relationship. Therefore, it is hard to conclude that the Article 713, the draft of Amendment which does not accord with the essence of partnership – if there is no other basis – is the right legislation. In other words, as Article 713, the draft of Amendment is the legal rules which succeed Article 712 of the existing Civil Law on the basis of it, the contents of Article 712 should be examined first and legitimacy of legal theory of Article 713 itself should fundamentally be reviewed. Article 712 and 713 should be regarded as defining the internal share rates among partnership members. As they belong to the partnership members by the joint ownership according to Article 271, 704, and 278 in the relationship between partnership creditors and partnership members-the external relationship-, they should be regarded as the joint partnership in indivisible obligation. Therefore, Article 713, the draft of Amendment cannot be regarded as being reasonable that it is applied to the external relationship, the relationship between partnership members and partnership creditors. Despite the partnership contract as the named contract defined by the Civil Law under the basic legal system, which is the basis of the Corporation Law, Article 712 remarkably tends to disregard creditors’ profits by overprotecting the partnership members, compared to the rules of the Commercial Law on the responsibilities of the unlimited partners in unlimited partnerships and general partners in limited partnerships.