宗中財産의 歸屬과 處分에 관한 硏究

다국어 초록 (Multilingual Abstract)

Jongjung(宗中; the families of the same clan) is a unique system found only in Korea. The current Civil Code does not provide any rules on jongjung, and in general it is regarded as an association without the capacity of enjoyment of rights. There have been partial researches on jongjung in history or other academic areas, but it has been studied in rarely law due to idle research activities in sociology of law.
From long ago in Korea, blood relatives of the male lines have been called a clan, which includes large and small family branches, and they have jointly conducted memorial services for their ancestors and maintained firm solidarity with one another. ‘Jong’(宗) means clan, jongjung, memorial service, family lineage, tribe, etc. and ‘jung’(中) means ‘inside’ in opposition to ‘outside.’ Combining the two words, jongjung means a tribal group.
With this origin, today’s meaning of jongjung can be defined as “a tribal group occurring spontaneously from the same ancestors in order to continue memorial services for the ancestors, preserve their tombs, and promote solidarity among the group members and their welfare.” In addition, it has been said, “jongjung is a natural tribal or family group membered by adult men among the descendents of the same ancestors with the object of protecting the ancestors’ tombs, conducting memorial services and promoting solidarity among the members.”
The origin of jongjung is explained by several conflicting theories. A representative theory is that it originated from a noble family inhabiting a province of the east coast in Ancient Chosun. There are also the views that it was originally a family rule in the Period of Three Hans and that it came from China in the late Koryo and early Chosun Dynasty. Currently, the last theory is most widely supported.
Jongjung generally owns jongjung properties like graveyards and lands. With the expansion of urban areas and the development of transportation through industrialization from the period of Japanese imperialism to the present, jongjung properties, which were worthless in the past, have been appraised at a high value. In addition, as the eldest descendants of the head family, who exercised absolute authority within jongjung in the past, have lost all their rights except memorial services, disputes are increasing over jongjung and jongjung properties. Such disputes are easily understandable considering that most jongjung properties are located in the remote countryside and, with the development of the countryside, many of them have become economically strategic places.
Legal disputes over jongjung mostly involve jongjung properties. In addition, solutions for the disputes lie in the definition of the legitimacy and legality of one representing the jongjung. Most of judicial precedents deal with the legitimacy and legality of jongjung representatives.
According to positive laws related to jongjung properties, the previous Civil Code had provisions only on joint ownership, but the current Civil Code had provisions not only on joint ownership but also on partnership ownership and collective ownership. In addition, the Civil Proceedings Act has regulations on the capacity of lawsuit parties. Concerning this, judicial precedents have changed the reversion form of jongjung properties from joint ownership(共有) to partnership ownership(合有) and, again, to collective ownership(總有) but, practically speaking, most of legal disputes over jongjung have been over jongjung properties. Such disputes surrounding jongjung properties are still occurring frequently. Nevertheless, there is no unified written law to solve the problems, and they are being solved case by case or fragmentary, referring to provisions in the Civil Code, the Civil Proceedings Act or the Corporation Act or based on common practices. However, considering today’s rapidly changing legal consciousness, it is neither desirable nor complete to solve these problems relying on judicial precedents and materials from previous researches.
Thus, the presents study purposed to analyze the formation process and reversion of jongjung properties and the management and disposal of the properties, and to examine the cause of legal disputes over jongjung properties and the forms of lawsuits. Based on the results, we study the functionality of jongjung, which may be protected by law and developed as a social entity rather than an obscure body relying on common practices and judicial precedents, and suggest problems in lawsuits on jongjung properties and their solutions.
This study is focused on jongjung properties in Korea, and its scope is limited to the formation, reversion, management and disposal of jongjung properties. Furthermore, it analyzes the causes of lawsuits over jongjung properties and suggests methods for resolving them.
Chapter I ‘Introduction’ presents the objectives, scope and methods of this study, and Chapter II ‘The Formation and Reversion of Jongjung Properties’ analyzes the meaning and legal nature of jongjung, the entity of right to jongjung properties, the formation of jongjung properties and the reversion of jongjung properties through theories on registered trust and relevant judicial precedents and theories.
Chapter III ‘Management and Disposal of Jongjung Properties’ analyzes the management and disposal of, jongjung properties through judicial precedents, identifies problems in lawsuits over jongjung properties, and suggests their solutions.
Chapter IV ‘Conclusions’ summarizes discussions on the formation and reversion of jongjung properties, the management and disposal of jongjung properties, and problems in legal disputes and lawsuits over jongjung properties and their solutions.
Because jongjung came to exist spontaneously and is acknowledged by common practices, we analyze its legal aspect based on related judicial precedents and theories. Analysis was particularly focused on common practices surveyed during the period of Japanese imperialism and judicial precedents up to recently. The result of this analysis showed that in these days judicial precedents play the most important function in solving jongjung problems. In addition, we analyzed the form of ownership of jongjung properties through the changes of judicial precedents while examining legal personality, which is a key concept for the rational settlement of legal disputes over jongjung properties, the most frequent jongjung problems.
Thus, this study examined the legal relations of jongjung, an association acknowledged by common practices, based on judicial precedents and suggested legal relations suitable for today’s situation based on the view that jongjung should be protected.
We also analyzed judicial precedents and theories related to the formation, reversion, management and disposal of jongjung properties. And, based on the results, we identified problems in disputes over the disposal of jongjung properties and looked for their solutions.
According to the results, disputes over jongjung properties are still occurring continuously. A major cause of such disputes is that the number of collectively owned real properties registered in the name of jongjung is relatively small and many of jongjung properties are owned privately or jointly by the descendents of the head family or influential figures among the jongjung members. This fact is causing many legal problems.
Disputes over jongjung properties are largely divided into two types. One is between jongjung and a third party other than the jongjung members, and the other is between jongjung and jongjung members. Disputes of the former type are usually about the effect of the transaction when jongjung’s real property has been sold to a third party, in which jongjung demands the cancellation of the registration of ownership transfer against the third party who acquired the property or demands the registration of ownership transfer against the third party who acquired the property, and disputes of the latter type are usually about real estate registered in the name of a jongjung member, in which jongjung claims that the member’s property has been in registered trust and demands the registration of ownership transfer for the reason of the cancellation of registered trust. For both types of disputes, the key issues are the lawful representative of jongjung and whether or not real estate registered in the name of an individual is jongjung’s possession.
With regard to such lawsuits over jongjung properties occurring continuously, the current laws have problems as follows: first, it is difficult to delimit the scope of jongjung members; second, there is no definite representative; third, it is difficult to confirm if the representative has a lawful right to dispose the properties; fourth, provisions for settling disputes are insufficient; and fifth, there is no control over jongjung.
To recover jongjung properties and maintain and preserve them properly, we suggest as follows. First, a special law needs to be established for regulating jongjung as an association. Second, the special law should allow each jongjung member to preserve jongjung properties individually and easily by following agreements or common practices. Third, considering that jongjung properties exist with the object of conducting memorial services for the common ancestors, protecting and managing their tombs and maintaining jongjung, the disposal of jongjung properties should be finalized by the consent of two thirds of the jongjung members rather than of a majority. Fourth, the date of the general meeting of jongjung should be set by the written articles of jongjung. Fifth, if jongjung acquires legal personality or registers itself at an official register like the jongjung register in order to strengthen the nature of jongjung as an association and clarify its existence, the theory of sole ownership of jongjung properties will become more persuasive. Sixth, it is necessary to delimit the scope of jongjung members to those who have reached a certain age and are reported or registered as jongjung members. And Seventh, to protect jongjung properties, the disposal of the properties should be done through the meeting of jongjung members and with the official approval of the governor of the city, country of town who is familiar with the jongjung.
Above all, however, it should be noted that jongjung will exist continuously in the future as well. For the spontaneously organized association, instead of settling disputes legally after they have already taken place, it is desirable to make plans to protect jongjung actively, clarify its nature, and activate its organization and activities. Problems related to jongjung cannot be solved completely with existing laws, namely, theories or judicial precedents without the capacity of enjoyment of rights. For their fundamental solutions, it is considered urgent to establish ‘the Jongjung Act’(宗中法) covering jongjung properties as a special law of the Civil Code.

목차 (Table of Contents)

• 제1장 序 論 1
• Ⅰ. 硏究의 目的 1
• Ⅱ. 硏究의 範圍와 方法 3
• 1. 硏究의 範圍 3
• 2. 硏究의 方法 4
• 제2장 宗中財産의 形成과 歸屬 6
• Ⅰ. 序說 6
• Ⅱ. 宗中財産의 意義와 法的性質 7
• 1. 宗中財産의 意義 7
• 2. 宗中財産의 法的性質 9
• Ⅲ. 宗中財産의 權利主體 13
• 1. 社團性 13
• 2. 宗中財産의 總有性 15
• 3. 宗中財産의 權利主體 15
• Ⅳ. 宗中財産의 形成過程 18
• 1. 宗中財産의 起源 18
• 2. 宗中財産의 設定 20
• 1) 宗中財産의 設定方法 20
• (1) 先祖의 1人 또는 相續人이 單獨으로 設定하는 경우 21
• (2) 宗中의 共同出捐에 의하여 設定하는 경우 22
• (3) 其他의 方法으로 設定하는 경우 22
• 2) 朝鮮林野調査事業, 朝鮮土地調査事業과 宗中財産 23
• 3. 宗中財産의 登記 26
• 1) 1930年 朝鮮不動産登記令 改正 以前의 登記方法 28
• 2) 1930年 朝鮮不動産登記令 改正 以後의 登記方法 30
• 3) 現行 不動産登記法上의 登記方法 31
• V. 宗中財産의 歸屬 33
• 1. 宗中財産의 名義信託 33
• 1) 名義信託의 意義 34
• 2) 名義信託의 成立 37
• 3) 名義信託의 對象 37
• 4) 名義信託의 對內關係 38
• 5) 名義信託의 對外關係 39
• 6) 名義信託의 解止 41
• 7) 名義信託의 禁止 43
• (1) 禁止의 範圍와 原則 44
• (2) 例外 44
• 2. 判例의 變遷 45
• 1) 宗中財産을 共有의 對象으로 본 경우 47
• 2) 宗中財産을 合有의 對象으로 본 경우 49
• 3) 宗中財産을 總有의 對象으로 본 경우 50
• 3. 學說 54
• 1) 宗中財産共同所有說 54
• (1) 共有說 55
• (2) 合有說 56
• (3) 總有說 57
• 2) 單獨所有說 58
• 4. 結語 61
• 제3장 宗中財産의 管理와 處分 64
• Ⅰ. 序說 64
• Ⅱ. 宗中財産의 管理 66
• 1. 位土의 管理 66
• 2. 管理方法 67
• 3. 保存方法 68
• Ⅲ. 宗中財産의 處分 69
• 1. 宗中財産의 處分節次 69
• 1) 舊法의 態度 71
• 2) 現行法의 態度 72
• 2. 宗中財産의 處分과 效力 73
• 1) 舊法의 態度 76
• 2) 現行法의 態度 78
• Ⅳ. 宗中財産의 處分과 法的紛爭 79
• 1. 紛爭의 原因과 類型 79
• 2. 宗中財産訴訟의 當事者 81
• 1) 宗中이 제3자를 상대로 하는 訴訟 81
• 2) 제3자가 宗中을 상대로 하는 訴訟 83
• 3) 宗中員이 宗中을 상대로 하는 訴訟 85
• Ⅴ. 宗中財産訴訟의 問題點과 改善方案 89
• 1. 宗中財産訴訟의 現行法上 問題點 89
• 2. 改善方案 92
• 1) 宗中財産回復을 요구하는 宗中의 地位 92
• 2) 宗中의 公益法人化를 위한 特別法의 立法 93
• 제4장 結 論 98
• 참 고 문 헌 118
• ABSTRACT 124