종중에 관한 입법론적 검토 - 민법개정시안 제39조의2와 종중을 중심으로 -

다국어 초록 (Multilingual Abstract)

The clan is one of important systems, which has long been practiced by common law in the area of Korean indigenous law.
This study hypothesized that a clan is a corporation without status for a juristic person, and limited its scope to the analysis and review of common laws related to clans centering on problems surrounding clans and the formation of legal principles for resolving disputes over clan properties.
For this, we performed legislative analysis and review for overcoming the limitations of the interpretive approach.
This study reviewed existing legislative theories related to the foundation of incorporated associations and those on clans in order to overcome the limitations of the interpretive approach in solving legal problems related to clans, and then analyzed and reviewed the draft of amendment on corporations made during the amendment of the Civil Code (Property Part) in progress, and through these, this study suggested a special act on clans as a legislative solution. For this, we looked for a solution through analyzing social evolution, changes in clan customs, problems in clan properties nominal trust, etc.
In the conclusion, I suggest a number of considerations for the legislation of “The Special Act on Clans and Clan Properties” for solving these legislative problems: a) With regard to the defining of clan, the objectives of a clan are the preservation of common ancestors' graves, memorial services, and friendship among clan members as in clans in the original sense. b) With regard to the registration of clans and their status for a juristic person, it is necessary to induce clans not to avoid registration by stipulating the procedure of clan registration minutely in the special act. Moreover, through clan registration, clans, which have been corporations without status for a juristic person, should be able to acquire the status for a juristic person. In addition, clans with the status for a juristic person should be treated more favorably by law than clans without. That is, clans without the status for a juristic person should be restricted in legal action as the plaintiff, application for registration as a registration right holder, and claim for the payment of deposit, etc. c) With regard to restriction on clans' acquisition of real estate, clans' real estate acquisition should be limited to lands for graves.
That is, clans' acquisition of real estate is restricted in order to remove the possible causes of disputes over clan properties. Then, what should be done for real estate that has already acquired by clans? As a registered clan acquires the status for a juristic person, such properties are owned solely by the clan. Accordingly, real estate under nominal trust should take ownership transfer registration to the clan for the reason of the termination of nominal trust. Such real estate acquisition by clans should be permitted exceptionally. Then, nominal trust real estate of clan properties under the Real Estate Real Name Act is all resolved, and at the same time, the rule prohibiting nominal trust by the Real Estate Real Name Act will be applied as it is. d) With regard to the foundation procedure and institution, first, permission from the competent authority and registration are required of special clans, the procedure and required documents may be more complicated than those for ordinary clans. Next, as to the institution of clan, special clans should have directors, the chief director and the auditor and regulate the appointment, rights and duties of these positions. Ordinary clans have the general clan meeting and executives but, as in special clans, the executives include directors, the chief director and the auditor. In addition, in order to have such executives perform their clan‐�related jobs sincerely, it is necessary to stipulate penal provisions against clan executives who raise profits from clan properties or help a third party raise profits, and consequently, inflict a loss on the clan, who give or take, demand or promise monetary profits in return for an illegal request related to their job at the general clan meeting, the exercise of voice or voting right, filing a lawsuit, etc. e) Concerning inspection, supervision, etc. special clans should be inspected and supervised by the competent authority, but ordinary clans may not need that. However, it may be necessary to allow an ordinary clan to become a special clan.

목차 (Table of Contents)

• Ⅰ. 서설
• II. 종중에 관한 기존의 입법론 검토
• 1. 개관
• 2. 입법론의 내용
• 3. 소결
• III. 법인에 관한 민법개정시안의 검토
• 1. 개관
• 2. 제1차 민법개정법률안과 법인에 관한 개정안
• 3. 제2차 민법개정법률안과 법인에 관한 개정시안
• 4. 소결
• IV. 결어
• 참고문헌