포괄승계(包括承繼)의 개념에 관한 연구

Traditionally in civil law jurisdiction including Korea, the concept of universal succession has been defined as the type of property transfer by which ① all the positive⋅negative property of predecessor is transferred, ② the transfer is made in single procedure, uno actu, at the same time, ③ and the ‘legal clothing’ of predecessor is succeeded to the successor. However, if I look into the current regulations and legal history, I come to the conclusion that in defining the concept of universal succession the element of the all the positive⋅negative property of predecessor being transferred is not always needed, especially when our Corporate Law vested the various type of reorganization transactions such as corporate division with the effect of universal succession. Therefore when we use and interpret the concept of universal succession in legislation and court decision, the adjusted elements of universal succession should be considered. In short, when we give the effect of universal succession, it does not necessarily mean that all the property of predecessor, and vice versa. Also, the concept of universal succession is-especially in corporate reorganization-to overcome the limits imposed in the individual transfer process for each target property. Hence, it has inevitable influences over the related third party’s interest. That’s why it has the exceptional nature and we should be considerate in expanding the scope of the universal succession. And when we give the effect of universal succession in regulations, we must describe it clearly so that it might not cause misunderstanding.