공동소유제도의 개정방향 － 합유･총유의 재정비 －

Abstract

The year 2010 is of great significance to Korean civil code. The Republic of Korea put an end to applying Japanese civil code that was used during the colonial period and promulgated its own civil code on the 1st January of 1960; this means that 2010 is the 50th anniversary of Korean civil code. In order to develop this 50-year-old code, it is necessary for us to review and reconsider the problems our civil code has and clearly establish the directions to resolve them. This work argues that one of those problems lies in the current co-ownership regime; and, the work discusses the appropriateness of the provisions on joint-tenancy and collective-ownership, and attempts to find a direction that should be followed in the next reform of the Korean civil code. The main issues explored in this work can be summarized as follows:First, though the general provisions of joint tenancy in Book II of Korean civil code are useful, they overlap or conflict with other provisions of the code due to the mistakes made in the legislative process. Therefore, they should be amended as follows: ① Article 271 (2)(“the following three provisions shall apply to the joint-tenancy relationship subject to the preceeding provision or an individual contract”) should be changed to “the following three provisions shall apply to the joint-tenancy relationship subject to the other provisions of the code or an individual contract; ② provision 704 of the code (properties or other contributions made by the members of an association are jointly owned by all members of the association) which deals with the property-relationship between the members of an association should be abolished. Second, as a type of co-ownership, Korean civil code accepts tenancy in common and joint-tenancy as well as collective-ownership; however, the latter type (i.e., collective-ownership) is not supported by any historical origin, and it is neither practically useful nor doctrinally justified. Therefore, the provisions relating to collective-ownership (Articles 275~277) should all be abolished. Third, if collective-ownership is abolished, problems may arise as to how to regulate the property-relationship between the members of an unincorporated verein. This can be resolved through the addition of a new provision that allows the provisions that govern the incorporated verein but are not related to registration/authorization to be applied by analogy to the unincorporated verein. It must be noted that this new provision and the provisions of collective- ownership should be incompatible. Fourthly, special servitude prescribed in Article 302 is derived from Article 263 of Japanese civil code applied in Korea in the colonial period. However, Article 302 of Japanese civil code regulated right of common which never had a chance to be used in Korea. Therefore, it should be removed for the same reason the emphyteusis (Articles 270-279 of Japanese civil code applied in Korea in the colonial period) was abolished. Korean civil code has reached its 50th birthday and looks somehow old-fashioned. It is now the time for our civil code to move a step forward in order to keep up with our specialized, informalized and globalized society. Then, what would be the tasks waiting for the academics in this country? I believe each academic has his or her own ideas. This paper tries to stress that Korean civil law should be developed in a more independent manner, rather than just directly emulating foreign institutions.