재단법인의 목적변경 한계에 관한 소고 - 일본 최고재판소 사례를 중심으로

In the past Japanese Civil Act, there was only a basis for the establishment of a non-profit corporation or foundation(collectively non-profit organizations, “NPO”) for public interest. Whereas, the Japanese new Acts on the NPOs, in effect since December 1, 2008, have the important features that a normal NPO is easily allowed to be established by normative system, and the NPO for public purposes can be converted into a public purpose NPO by the authorization for the public interest. However, in the process of converting a NPO for public interest established under the Japanese past Civil Act into a normal NPO under the new Acts, the permissibility of the purpose change and its limit are arguable. The Japanese Supreme Court Decision on December 27, 2015(Heisei 27)(the “Decision) found that “the articles [of the concerned foundation] can be changed regardless of whether it is a fundamental change that could cause the loss of its identity or not.” The Decision was made in accordance with the decisive reforms of NPO system in Japan, and it is doubtful to what extent it could be applied. In addition, there are limitations in itself, such as ignoring the essence of foundation, that it can not have an autonomous decision-making, apart from the intention of the founder. However, we could reconsider in what circumstances the foundation's purpose is allowed to be changed, and what extent is the just and reasonable limitation of the purpose change. It is expected that the analysis of the Decision is helpful in establishing the direction for discussions on the purpose change of the foundation in the Korean Civil Act.