定款의 變更

On Alteration of Articles of Juristic Person

64)Incorporated associations and foundations have articles, and cannot be formed without articles(The Civil Code §40, §43). But the character of the articles is quite different between incorporated associations and foundations. The articles of incorporated association is self-governing laws and regulations applying to present or future members and its organs, while the articles of incorporated foundation are founder s directives for its management. This difference affects the alteration of the articles. Since the articles of association is self-governing laws and regulations, general meeting of members can alter even the prohibitory provisions for alteration and the purposes of association. But alteration of the foundation articles is much restrictive. The Civil Code permits the alterations, ① when the mode of alterations thereof is stipulated in the articles(§45 ①), ② when it is necessary to alter the name or seats of office for the purpose of achieving the objective of the foundation, or preservation of its property, and ③ when it is impossible to achieve the objectives of the foundation, and the founder or directors want to alter its articles. The Civil Code does not stipulate to follow the alteration procedures of articles, but requires the procedure. But the Supreme Court requires the following. This essay weeds out several ambiguities in applying the Court s decisions. The alteration of articles of juristic person comes into effect with the competent authorities approval(The civil code §45 ③, §42). The Supreme Ccourt interprets the character of the authorities approval as authorization. But the writer asserts to interpret its character as permission like its wording.