법인 아닌 사단에 관한 고찰

A Study on the Association Without Judicial Personality – With Special Reference to Cases –

In judging whether there is a capacity for being a party, it is governed by the Civil Act and other Acts unless otherwise prescribed in the Civil Procedure Act. According to Article 52 of the Civil Procedure Act, an association without judicial personality, in case where it has a representative, become a party to a lawsuit in the name of such association. Even the organization which doesn’t have a legal personality become a party to a civil procedure, but it is restricted to the positive law that is implemented at the present time. Only the organization that is considered as an independent unit of social activities by executing operations of an executive and a representative agency become a party to a civil litigation. Considering that an association without judicial personality doesn’t have a legal personality and a piece of property is owned collectively by the members of an association which is not a juristic person belongs to collective ownership, when an association without judicial personality performs the litigation as a party, it is necessary to interpret relevant Acts congruously. It would be desirable that the area of the law incorporates an association without judicial personality by applying on the analog of the Civil Act provisions on an incorporated association except ones are premised on a juristic personality, and we should resolve efficiently the disputes are related to an association without judicial personality. Doing so would be inconsistent with the legislative purpose of Article 52 Civil Procedure Act. When an association without judicial personality is a party of a legal relationship within the scope of its objects, we should understand that the legal effect reaches the association without judicial personality by the analog with Article 34 of Civil Act. If so, it would be possible to explain appropriately the structure of the lawsuit which an association without judicial personality is a party, especially the standing to sue of an action claiming performance and the sphere of the effect of the judgement.