종중에 관한 판례이론의 문제점 = Problems on the precedent theory about Jongjung

다국어 초록 (Multilingual Abstract)

Supreme Court judges that Jongjung(families of the same clan) is for non-corporate body organized by the whole male and female adults among the descendants of joint ancestor and Jongjung property is for chongyu(collective ownership) of Jongjung members. Meanwhile, Supreme Court has developed special judical principle different from what is applied to non-corporate body for establishment of Jongjung, acquisition and loss of Jongjung members`` qualifications, etc. like ``Jongjung doesn``t need special organizational behaviors for establishment of Jongjung as what is established by descendants at the same time of a death of joint ancestor.`` (theory of naturally developed group) or ``Among the descendants of joint ancestor, men and women, more than adults, become members of Jongjung naturally regardless of their own opinion.`` (theory of natural participation) and en banc judged that the judical property is customary law in 2005. Criticisms of the precedent theory can be arranged as follows. ① First of all, customary law can be recognized by repeated customs of the society. But, there is no ground for the customs according with ``theory of naturally developed group``, ``theory of natural participation``, etc. Furthermore, there are naturally doubts that the precedent theory of Jongjung was originated from the tool for colonial ruling of the Japanese Empire in relation to the origin. ② Next, ``theory of naturally developed group`` among the Jongjung theories is not according with essences of non-corporate body, so ``theory of natural participation`` not only isn``t according with the principle of private autonomy, a basic theory of civil law, but also violates freedom of association, a basic right of constitution. So, it``s difficult to recognize the theoretical legitimacy. ③ Supreme Court relieves rules applied to non-corporate body drastically, regarding to the decision-making procedure of Jongjung. It seems to secure effectiveness of Jongjung theory through the decision-making of Jongjung, ``naturally developed group``, but it actually makes decision-making about Jongjung difficult and makes legal conflicts about it complicated. In addition, a few Jongjung members can control decision-making of Jongjung legally, so there is a danger that majority rule can be violated essentially. ④ Finally, Supreme Court accepts disposal and division of Jongjung property without any classification and applies same judical principle for the procedure. In consideration of goals of Jongjung and changes of historic/social environment, necessities to dispose of Jongjung property can be recognized, but division of Jongjung property to Jongjung members is directly opposed to the goals of Jongjung and Supreme Court doesn``t recognize dissolution of Jongjung. Therefore, it``s also difficult to recognize exceptional necessities.