민법상 조합의 민사소송상의 지위

• 발행기관: 한국민사소송법학회
• 저자명: 김경욱
• 간행물 정보: 『민사소송』제13권 제1호, 84~121쪽, 전체 38쪽
• 주제분류: 법학 > 법학
• 파일형태: PDF
• 발행일자: 2009.05.30

영문 초록

In the modern society, the entities in many different forms become interested parties in transactions. The capacity to sue or to be sued of the associations that are not corporate entities is defined in Article 52 of the Civil Procedure Code of Korea. What is absent in the said Article 52 is a clear guidance on the requirements to qualify as such associations. This apparent absence leads to the issue of the capacity to sue or to be sued of Civil Code partnership in civil suits. In Chapter Ⅱ, discussed are the conceptual differences between the partnership and the unincorporated associations, both of which are the focus of this paper. The distinguishing features of these two types of entities are also discussed in Chapter Ⅱ. In connection with the joinder issues for the partnership with multiple partners, discussed are the creditor rights and debtor obligations of the partnership and the related action type (compulsory joinder) in Chapter Ⅲ. In Chapter Ⅳ, examined is an issue of whether an individual member or a general partner can be deemed as a real party in interest particularly acting in the capacity of a class representative, which issue is reviewed as a way to handle suits involving partnership properties in an expeditious and simplified manner. In Chapter Ⅴ, examined is an issue of whether the Civil Code partnership can be classified as an unincorporated association under Article 52 of the Civil Procedure Code of Korea and, hence, can be given the capacity to sue or be sued. In this paper, it is attempted to make a reasonable determination on the issue of permitting the Civil Code partnership to have the capacity to sue or to be sued by examining the relevant theories currently discussed in Korea and taking into consideration the fact that the case laws in Japan and Germany that used to reject the partnership’s capacity to sue or to be sued now permit the partnership to have the capacity to sue or be sued. In Chapter Ⅵ, the foregoing discussions are summarized and a suggestion is made as to the simplification of the partnership related civil suits.

목차

Ⅰ. 들어가면서

Ⅱ. 민법상 조합과 법인이 아닌 사단의 구별

Ⅲ. 조합재산의 귀속형태와 조합원의 소송형태

Ⅳ. 조합원에 의한 소송대리

Ⅴ. 조합의 당사자능력

Ⅵ. 마치면서

참고문헌

키워드

민법상 조합 당사자능력 법인이 아닌 사단 필수적 공동소송 업무집행조합원 civil code partnership capacity to sue or to be sued unincorporated association compulsory joinder general partner