민법상 조합의 당사자능력에 관한 고찰

Civil code partnership and the capacity to sue or be sued

Our courts interpret the non-corporate associations under the Civil Procedure Act as being conceptually the same as the non-corporate associations under Article 275 of the Civil Code, and based on this interpretation deny recognition of civil code partnerships as entities having the capacity to sue or to be sued. However, the aforementioned Article merely deals with these associations in connection with the concept of collective ownership, which is a form of joint ownership of property, and is not intended to serve as the definitive provision for the basic concept of associations; and the author questions whether this limited concept of non-corporate associations under the Civil Code may be viewed as having the same meaning or function as their counterparts under Article 52 of the Civil Procedure Act, which is a provision relating to the resolution of disputes. The author also believes that there are problems with today s practice of measuring the wide variety of multi-member groups in society against legal criteria established under substantive law and recognizing only those groups which meet such criteria as having the capacity to sue or to be sued. As the capacity to sue or to be sued is a procedural and not a substantive issue, the author believes that it is not necessary to view the concepts of non-corporate associations under the Civil Code and the Civil Procedure Act as being identical. Hence, the author suggests that the non-corporate associations under the Civil Procedure Act be interpreted to cover civil code partnerships as well, in order to facilitate the procedures for dispute resolutions, and that non-corporate associations be defined broadly so that groups will qualify as long as there exists some unity of purpose among the group members and the group has rules for reflecting the opinions of the members and choosing their representative.