종중재산 보존행위에 대한 구성원 개인의 소송 가능성

Possibility of an Individual Suit for Preservation of Gesamteigentum Property

In Civil lawsuit, its legislation and interpretation shall be conducted soas to actualize the ideology in terms of its purpose and conditions. In the case where an unified confirmation is needed, primarily an interference with the virtue of a case must be avoided. Also there shall be no inconvenience caused to the third party who had not participated in the lawsuit nor it shall not make the defendant feel compelled to accept the legal suit in which this may result in the increase of the court's burden. These requests need to be carefully examined in each specific occasions. However with the joint owners of a gesamteigentum property, an unincorporated association which has become a defendant or when the unincorporated association needs an execution of an announcement(registration or an enrollement) of achieving new legal rights rather than as an act of preservation, a compulsory suit by a joint owner must be considered. However, allowing an individual right of use and beneficiary rights whilst not allowing a right of individual preservation in case when there has been an infringement upon its property, is not only a contradiction itself but also reduces or deprives the right to fair trial of the interested party. In light of this, if we are to adhere to the principle of the compulsory lawsuit by a joint owner(notwendige Streitgenossenschaft) of gesamteigentum property, it not only distorts the purpose of civil action but will further recede from achieving its original purpose. Therefore one needs to introduce a legal suit that is similar to a compulsory lawsuit by a joint owner(notwendige Streitgenossenschaft) and clarify conditions as to when a compulsory lawsuit by a joint owner(notwendige Streigenossenschaft) shall be conducted. Also there should be a system which allows for an order of a compulsory participation of the parties rejecting their participation in the lawsuit by a joint owner(notwendige Streignenonssenschaft).