공동소유에 관한 민법 개정안

The Revision draft of co-ownership provisions of the Civil CodeJinsu YuneThe Korean Civil Code acknowledges three types of co-ownership;common ownership(공유), joint ownership(합유), collective ownership(총유). In case of common ownership, co-owners own separate and distinct sharesof the same property. If members of the partnership own the property ofthe partnership, they become joint owners. Joint owners have no distinctshares of the property. Collective ownership is established when membersof an association without legal personality own the same property. In February 2014, the Civil Code Revision Committee of the Departmentof Justice has prepared the revision draft of co-ownership provisions of theCivil Code. The main points are as following. 1. Common ownershipFirstly, according to the draft, one common owner can acquire thesubordinate real rights on the property commonly owed. At present, such anacquisition is not allowed, as an owner, including a common owner, cannotacquire the subordinate real rights of the property she herself owns. Secondly, the agreement among common owners regulating theadministration of the common property is effective againt the successor ofone common owners. The precedents have acknowledged it. The draftgives the precedents a statutory basis. Thirdly, The draft gives more discretion to the court in deciding thepartition of the common property. 2. Joint ownershipFirstly, the draft aims to resolve the contradiction between the jointownership rule and partnership contract rule. According to the presentCivil Code, all joint owners should consent to the disposition or alteration168 민사법학 제 68 호(2014.9)of the joint property, although the majority rule may be adopted byagreement. In contrast, the execution of partnership affairs is governed bymajority rule as a default rule. So there is much debate about how toresolve this apparent contradiction. The draft changes the partnershipcontract rule by introducing the unanimousness rule in the execution ofpartnership affairs. However, adopting the majority rule by agreement ispossible. In this way, the contradiction can be avoided. Secondly, the rule regarding the attribution of partnership property is tobe changed. The present provision states simply that the property ofpartnership becomes the joint property of the partnership members. So itis unclear whether other forms of ownership can be allowed by theagreement of partnership members. The draft makes it clear that otherforms of ownership can be adopted by agreement. 3. Collective ownershipThere is much controversy whether an association without legalpersonality itself may own the property or only members of such anassociation my own the property. A proposal was raised to eliminate theprovisions regarding the collective ownership, on the premise that such anassociation may own the property. However, this proposal was notaccepted, as such a change blurs the distinction between the legal entityand the association without legal personality.