단체법상 정관자치와 그 한계 －비영리사단을 중심으로－

Among the areas of organizational law, non-profit association law is characterized by low regulatory density and a high degree of autonomy concerning the articles of association. In some cases, even essential aspects of governance are left entirely to the articles of association, even without default rules. This allows for extensive autonomy in most aspects, including the allocation of power between the (board of) directors and the general meeting of members, which can largely be determined by the articles. On the other hand, the default rules set forth in the Civil Code appear to be suitable only for organizations constituted from a small number of members with personal acquaintance and limited interests. However, contemporary realities of organizations reveal that even non-profit associations do not always fit this mold. Large-scale associations with significant membership have emerged, as have hierarchical relationships between upper and lower associations. Some associations wield considerable political, economic, or social influence, while others have customary or even spontaneously formed structures, which have been overlooked by the Civil Code. While the freedoms of withdrawal and rights to amend the articles of association serve as the ultimate checks on the possible abuse of such autonomy, they are insufficient safeguards in the context of today’s organizational realities. There is a clear necessity to impose limitations on the autonomy concerning the articles of association, for example, by relying on the principle of public policy. It is particularly crucial to identify the types of associations requiring stricter regulation and to derive from them the boundaries of autonomy permissible for the articles of associations.