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Legal status and regulation of the unincorporated association

  • DONG-A LAW REVIEW
  • 2013, (58), pp.457-508
  • Publisher : The Institute for Legal Studies Dong-A University
  • Research Area : Social Science > Law

Song Oh SiK 1

1전남대학교

Accredited

ABSTRACT

The Korean civil law had denied the legal capacity(Rechtsfähigkeit) of an unincorporated association only stating that its members own the property in the form of collective ownership(KBGB §275). Korean civil code drafters did not enact regulation on the unincorporated association. But we can find out the provision on the unincorporated association in the Civil Porcedure Law(§52) and the Registration of Real Estate Act(§26). Though the provisions do not exist in Korean civil code, there have been many kind of the unincorporated associations in reality. Caused by their activities, we came to decide whether we acknowledge their legal status or not and legal effect on their activities. KBGB distinguishes the unincorporated association from the partnership in the form of the ownership and its registration clearly. Common view stay in line with the precedent on the point that provisions relating to the incorporated association applied by analogy except provisions applied merely to the incorporated association. I point out a problem which the same principle can be applied to all unincorporated associations regardless of its purpose or origin. Unincorporated associations can be classified by its purpose, origin, commerciality. They are largely classified into three categories, that is, conventional unincorporated association, purposive unincorporated association, establishing incorporated association. Conventional unincorporated association can be divided into blood relationship community and communion. purposive unincorporated association also can be divided into religious community and cooperative non-profit organization and profit organization. Classified method would be useful for understanding to their characters. Essential factors of incorporated association are autonomous norm(articles of association), definition of members, Forming of agreement organization, organizing of organ(representative organ, executive organ). The Law of Reality prescribes that if a piece of property is owned by collectively by members of an unincorporated association, it shall belong to collective ownership. It has dualised system of collective ownership which divides into management/disposal and use/profit. This system is very unique, but its system is more or less effective corresponding to a variety of unincorporated associations.

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