총유물의 관리·처분행위에 관한 판례의 검토

The Supreme Court ruled that “with respect to property in collective ownership, Article 276.1 of the Civil Act states that any article of incorporation or covenant shall be followed if anything is set forth therein while a resolution made at a general meeting of the members shall be followed if there is nothing set forth by any article of incorporation or covenant; hence, any management or disposition of the property in collective ownership without following either of the aforesaid procedures is deemed invalid.” Hence, if the representative of an unincorporated association performs any act that constitutes management or disposition of a property in collective ownership without any resolution of the general meeting, such an act is deemed invalid regardless of whether the other party was in good faith or malice. In this respect, considering the problem of transaction protection that could arise when such an act is ruled invalid, the Supreme Court seems to interpret management or disposition of the property in collective ownership in a very strictly limited way as requiring a general meeting resolution. However, a problem of transaction protection that arises from an unincorporated association’s transaction with the outside party should be resolved beginning with a fundamental reexamination of the Articles of the Civil Act and rulings of the Supreme Court on management or disposition of a property in collective ownership. It would be more accurate to regard the management or disposition of a property in collective ownership set forth in Article 276.1 of the Civil Act as any external legal act of an unincorporated association’s representative that could directly or indirectly affect any property in collective ownership or any collectively owned property—including but not limited to assuming surety obligations, approving debt as a reason to nullify the statute of limitations, concluding an agreement to pay commission fees, signing a design service agreement, concluding a loan agreement, agreeing with conditional completion, concluding an agreement to harvest and supply clams, and approving free use—and to understand that any general meeting resolution required to allow the representative to perform any of these acts is nothing but an internal decision-making procedure designed to represent the entire association. As mentioned above, if any resolution of the general meeting in accordance with Article 276.1 of the Civil Act is viewed as nothing but an internal decision-making procedure, the management or disposition of a property in collective ownership is deemed valid even if such an act is performed without any resolution. This would make it possible to protect the transactions of an unincorporated association. Nonetheless, it would not be appropriate to consider any management or disposition to be always valid as it runs counter to the intent of the Act, which was designed to ensure the existence of an unincorporated association and protect the interests of its members by defining the ownership of such an association as collective ownership. Therefore, it would be reasonable to infer the legal rationale behind the abuse of the representative’s rights and allow an unincorporated association to prove that the other party knew or could have known the abuse of the representative and claim against the other party about the invalidity of such abuse if the representative abuses his or her rights for personal gain.