상법의 관점에서 바라본 민법개정안의 법인제도

The Committee on the Amendment of Korean Civil Law, which is affiliated to the Ministry of Justice, announced in June 2010 the draft bill to amend the Juristic Persons System of the Korean Civil Code. One of the most important changes in the draft bill of 2010 is the introduction of the approbation system into the incorporation of a non-profit juristic person. Currently, a non-profit association may be formed as a juristic person subject to the authorization of the competent authorities. The draft bill of 2010 proposes that a non-profit organization be formed as a juristic person only subject to the approbation of the competent authorities. The Korean Civil Code § 39 provides that an association which aims at profit-making may be a juristic person in accordance with the conditions prescribed for the formation of trading companies. This section should be abolished, because a profit-making association currently may be formed as a business company with a juristic personality according to the Korean Commercial Code. The draft bill of 2010 introduces a new § 39-2, which provides that most provisions for a juristic person should apply to an association without juristic personality. While the new section offers a different type of business entity,entrepreneurs would not select this business entity due to its legal uncertainty. Representative authorities of directors may be restricted only by the articles of incorporation under the draft bill of 2010. The ‘restriction’ placed on the representative authorities seems to refer to the restriction of ‘an extent’ as well as of ‘a manner’ of the power of representation. Under the current § 60 of the Korean Civil Code, if any restriction placed on the power of representation of any director is not registered, such restriction cannot be set up against a third person despite his acting in bad faith. Protecting a third person acting in bad faith, however, is not consistent with the core principle of Civil Law. Thus, § 60 should be amended in accordance with § 37 of the Korean Commercial Code, which provides that matters as required to be registered shall not be effective as to any third person acting in good faith without registering them. The draft bill of 2010 newly adopts the system of mergers and divisions of non-profit juristic persons. Most provisions concerning mergers and divisions seem to refer to the ones of the Korean Commercial Code, which shows the tendency of ‘commercialization of civil law.’