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KCI우수등재 학술저널

法人의 權利能力에 관한 一考

목적에 의한 권리능력 제한론을 중심으로

  • 5

Article 34 of the Korean Civil Act states the following concerning the Legal Capacity of Juristic Persons : A juristic person shall be subject to rights and obligations in accordance with the relevant laws and within the scope of its objects as determined by its Articles of Incorporation. In other words, the Article provides that the legal capacity of a juristic person is limited by the objects that appear in its Articles of Incorporation, the nature of a juristic person generally, and the relevant laws of the jurisdiction in which it exists. As a result, the following questions arise: (1) Theoretically. what dces the phrase objects as determined by the Articles of Incorporation mean? (2) On what ground can it be determined whether the behavior of any juristic person is within the scope of its objects as determined by the Articles of Incorporation? (3) Considering that the Korean Commercial Act contains no analogous provision to Article 34 of the Civil Act, may Article 34 be applied to any corporation, i.e., any typical juristic person whose object is to make a profit? In responding to these questions, the Korean Supreme Court in the above-mentioned decision held that (1) objects as determined by the Articles of Incorporation meant that the legal capacity of a Juristic person is limited by the laws that provided a basis for the incorporation: that (2) behavior of a juristic person is considered within the scope of its Articles of Incorporation if it is directly or indirectly necessary to perform the objects: and that (3) whether any behavior is necessary for the realization of a juristic person s objects should be determined abstractly and objectively, rather than in accordance with the actor s specific subjective intention. The above-mentioned Supreme Court decision is generally consistent with previous precedents holding that although the legal capacity of juristic person is limited by its objects as determined by the Articles of Incorporation, the scope of the objects should be interpreted broadly. In the author s opinion is that the above-mentioned decision. albeit correct in the strict letter of the law, is problematic as interpreted and applied. The decision adheres to the theory of ultra vires, which many consider to have been substantively abandoned in Anglo-American law, i,e., the origin of the theory. However, in effect, the decision eviscerates the theory by enlarging the scope of the juristic person s objects to the extent that the language of Article 34 is meaningless.

「판례평석요지」

「사실의 개요」

「당사자의 주장」

「원심의 판단」

「대법원결정의 요지」

「硏究」

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