민법상 조합의 민사소송상의 지위

Abstract

In the modern society, the entities in many different forms become interested parties in transactions. The capacity to sue or to be sued of the associations that are not corporate entities is defined in Article 52 of the Civil Procedure Code of Korea. What is absent in the said Article 52 is a clear guidance on the requirements to qualify as such associations. This apparent absence leads to the issue of the capacity to sue or to be sued of Civil Code partnership in civil suits. In Chapter II, discussed are the conceptual differences between the partnership and the unincorporated associations, both of which are the focus of this paper. The distinguishing features of these two types of entities are also discussed in Chapter II. In connection with the joinder issues for the partnership with multiple partners, discussed are the creditor rights and debtor obligations of the partnership and the related action type (compulsory joinder) in Chapter III. In Chapter IV, examined is an issue of whether an individual member or a general partner can be deemed as a real party in interest particularly acting in the capacity of a class representative, which issue is reviewed as a way to handle suits involving partnership properties in an expeditious and simplified manner. In Chapter V, examined is an issue of whether the Civil Code partnership can be classified as an unincorporated association under Article 52 of the Civil Procedure Code of Korea and, hence, can be given the capacity to sue or be sued. In this paper, it is attempted to make a reasonable determination on the issue of permitting the Civil Code partnership to have the capacity to sue or to be sued by examining the relevant theories currently discussed in Korea and taking into consideration the fact that the case laws in Japan and Germany that used to reject the partnership's capacity to sue or to be sued now permit the partnership to have the capacity to sue or be sued. In Chapter VI, the foregoing discussions are summarized and a suggestion is made as to the simplification of the partnership related civil suits.