조합재산의 처분에 대한 단상

This paper reexamines the classical issue of whether the Civil Code’s provisions on joint ownership or its provisions concerning business management apply when disposing of partnership property. The conclusions of this paper can be summarized as follows: 1. This issue did not newly arise with the enactment of the Civil Code, but was a problem that had been latent under the Japanese Civil Code imposed on Korea during the colonial period. At that time, it was interpreted without doubt that the business management rules took precedence, but after the enactment of the Civil Code, this interpretation was immediately questioned, giving rise to a new point of debate. 2. In France in 19th century and England, partnership property is jointly owned by its partners, but the disposition of partnership property follows the rules of business management. In Germany, the principle of unanimous consent applies to both business management and disposition of partnership property, but in the case of jointly inherited property where there is a conflict between management rules and disposition rules, provisions on management take precedence. 3. The characteristic feature of joint ownership of partnership property is that the partners cannot dispose of their shares and cannot request division of partnership property. It cannot be said that unanimity in disposition is its essential element. In accordance with the purpose of the Civil Code’s Article 271, Paragraph 2, which establishes the provisions on joint ownership as non-mandatory, the disposition of partnership property should be determined according to the Civil Code’s Article 706 when it constitutes a matter of business management. Within that scope, the authority of representation should be recognized for the partners executing the disposition. Conversely, when the disposition of partnership property does not take place in the course of business management—that is, when it effectively changes or terminates the partnership contract—unanimous consent is required according to the Civil Code’s Article 272.