With the enactment of the Korean Civil Law, co-ownership, partnership-ownership and collective ownership were defined in the form of joint ownership, and there are still many problems in case ruling in its application. There are also many criiticisms on collective ownership provisions.
Regulations of legal issues surrounding Incorporated Body of Non-Juristic Person have performed in two ways; applying collective ownership provisions to deal with right of property and inferring entity with legal personality provisions definitely contradictory each other, originally have significant problems because they have different purposes of the enactment. Especially, provisions related to collective ownership are too short to solve the legal problems about Incorporated Body of Non-Juristic Person due to its simple and abstract concept.
This paper tries to suggest the way to solve these problems by examining theories and relevant precedents about Incorporated Body of Non-Juristic Person cases. In this paper I have made clear the concept of Incorporated Body of Non-Juristic Person, meaning of collective ownership provisions and analogical application of entity with legal personality provisions to Incorporated Body of Non-Juristic Person.
Though the families of the same clan as Incorporated Body of Non-Juristic Person has not legal capacity, he may have real eatate registered in his own name according to Regislation of Leal Estate Act. But most same clan have registered his real estate in the name of another person (so called ‘title trust’) in the case of the same clan. Pescendents of common ancestors become the members of the same clan by all mens without any separate joining procedures, so difficulty of grasping who the members of the same clan are and where they live in convening the general meeting of the same clan for their decision making makes hard to notify the call of the general meeting. It is also troubling to understand the scale and existence of the overall members of the same clan in fixing quorum of confernce and resolution to decide proceedings and so on.
And then, it examines a guaranty of payment by a representative of Incorporated Body of Non-Juristic Person for understanding the external relationship of this Non-Juristic Person. In connection with this problem, the Supreme Court of Korea 2007.4.19. sentence, 2004da60072, 60089 Decision narrowly interpreted the article 276(1), which requires of the general meeting resolution for act of management, disposition of object of collective ownership for protecting members who deal with Incorporated Body of Non-Juristic Person and safety of transaction. This ruling is also criticized that interpreting a guaranty of payment does not fit with collective ownership for promoting the safety of transaction is too much formal and the safety of transaction should be protected by restrictive interpretation of collective ownership through analogical application of entity with legal personality provisions. However, this critical opinion can not be accepted because this criticism is too far from the history and purpose of the article 276(1). This provision does not simply intend to restrict the power of representative. Rather, protection of a third party who transacts with Incorporated Body of Non-Juristic Person can be achieved by the literal and direct interpretation of the article 276(1) as in the Court decision.
I don’t agree to the majority opinion of the Supreme Cout 2005.9.15. sentence, 2004da44971 Decision that act of preservation may not be done without quorum for resolution, I think that object of collective ownership may be preserved by each one having collective ownership.
Currenty in Korea, Civil Act reforms are under way, and there are plans to make overall canges for the legal prwisions on Incorporated Body of Non-Juristic Person. I hope that Korean Civil Act regulations reforms for collective ownership will be made.