법인 아닌 사단과 총유 규정의 고찰 - 공동체 정신과 관련하여 -

Research on the regulations of collective ownership in our academia has tended to supplement Professor Kim Jeung-han’s theory and system or criticized it. It has made breakthroughs in academia and practice, however, it is necessary to explore the ideological foundations behind the collective ownership regulations. In this article, the meaning or existence of the collective ownership regulations is reviewed, focusing on the legislator's opinion or the purpose of the law on the basis of legal ideology. In particular, the relationship between values or spirits pursued by unincorporated associations as commons is studied from its own legal and philosophical perspective. The following summary is the conclusions of reviewing the conventional discussions on collective ownership regulations with the perspective of liberalism and communitarianism. First, it is necessary to consider the meaning of the collective ownership regulations in the circumstances and historical trends at the time of the enactment of the Civil Act. We cannot underestimate the ideological basis of liberalism and communitarianism. It is also necessary to reinterpret whether the collective ownership regulations will still be suitable for regulating the future situation in line with the public's legal consciousness. Second, the collective ownership regulations, one of the characteristics of Korean civil law, should be handled carefully and judged by comprehensively considering the characteristics of various and numerous unincorporated associations that exist in our society. Third, the characteristics by each type of unincorporated association should be considered and it is necessary to discuss the value or spirit of the commons, which is the establishing purpose of unincorporated association. We should proceed with academic development in the spirit of “Gain new knowledge by reviewing old things”