영미법상 법인의 권리능력과 행위능력에 대한 고찰

• 영문명: How Much Power Are Corporation in Common Law Entitled?- focusing on ultra vires doctrine
• 발행기관: 한국민사법학회
• 저자명: 가정준(Ka, Jungjoon)
• 간행물 정보: 『민사법학』제48호, 35~57쪽, 전체 23쪽
• 주제분류: 사회과학 > 사회과학일반
• 파일형태: PDF
• 발행일자: 2010.03.31

영문 초록

This article has focused on “ultra vires doctrine in the common law to find out how Korean civil law has interpreted the article 34 of civil code based on this doctrine. Recently, the number of Korean legal scholars participates in the movement to review and amend the entire of Korean civil code. Personally, I support this movement and would like to encourage them to strongly move forward. In this mood, this article tries to show how the common law has developed this doctrine and how this doctrine plays a role in the article 34 of civil code for the possibility of its amendment. In England, “ultra vires doctrine has also been interpreted based on a company’s capacity. In general, the validity of an act done by charitable and profit companies shall not be called into question on the ground of lack of capacity by reason of anything in the company’s constitution. However, this ground may be challenged if a person does not know at the time the act is done that the company is a charity, or a person gives full consideration in money or money’s worth in relation to the act in question and does not know (1) that the act is not permitted by the company’s constitution, or (2) that the act is beyond the powers of the directors. In the United States, every nonprofit and profit corporations have perpetual duration and succession in its corporate name and has the same powers as an individual to do all things necessary or convenient to carry out its affairs including, without limitation, power. First of all, the validity of an act done by a company shall not be called into question on the ground of lack of capacity by reason of anything in the company’s constitution. However, a corporation’s power to act may be challenged (1) in a proceeding by a shareholder against the corporation to enjoin the act, (2) in a proceeding by the corporation, directly, derivatively, or through a receiver, trustee, or other legal representative, against an incumbent or former director, officer, employee, or agent of the corporation, or (3) in a proceeding by the attorney general. In Korea, commercial law scholars have claimed that “ultra vires doctrine should be abolished in the filed of corporation law. On the other hand, civil law scholars have been reluctant to express their own view to abolish this doctrine. Instead, they have provided new interpretation by narrowing “ultra vires doctrine . Since “ultra vires doctrine is deemed not easily abolished in the field of civil law unlike in corporation law, the alternatives like different interpretation or amendment in different fields are necessary for “ultra vires doctrine . This article has explored “ultra vires doctrine in England and U.S. in order to provide basic study for the alternatives.

목차

Ⅰ. 서론

Ⅱ. 민법 제34조의 역할과 해석

Ⅲ. 영미법상의 법인론

Ⅳ. 영국의 Ultra Vires Doctrine(“능력외이론”)

Ⅴ. 미국의 Ultra Vires Doctrine

Ⅵ. 결론

참고문헌

키워드

권리능력 행위능력 능력외이론 영리법인 비영리법인 정관 소권 Power Capacity Ultra Vires Doctrine Object Clause Corporation Injunction