Earticle

초록

영어

In Civil lawsuit, its legislation and interpretation shall be conducted so as to actualize the ideology in terms of its purpose and conditions.
In the case where an unified confirmation is needed, primarily an interference with the virtue of a case must be avoided. Also there shall be no inconvenience caused to the third party who had not participated in the lawsuit nor it shall not make the defendant feel compelled to accept the legal suit in which this may result in the increase of the court's burden.
These requests need to be carefully examined in each specific occasions.
However with the joint owners of a gesamteigentum property, an unincorporated association which has become a defendant or when the unincorporated association needs an execution of an announcement(registration or an enrollement) of achieving new legal rights rather than as an act of preservation, a compulsory suit by a joint owner must be considered.
However, allowing an individual right of use and beneficiary rights whilst not allowing a right of individual preservation in case when there has been an infringement upon its property, is not only a contradiction itself but also reduces or deprives the right to fair trial of the interested party.
In light of this, if we are to adhere to the principle of the compulsory lawsuit by a joint owner(notwendige Streitgenossenschaft) of gesamteigentum property, it not only distorts the purpose of civil action but will further recede from achieving its original purpose.
Therefore one needs to introduce a legal suit that is similar to a compulsory lawsuit by a joint owner(notwendige Streitgenossenschaft) and clarify conditions as to when a compulsory lawsuit by a joint owner(notwendige Streigenossenschaft) shall be conducted. Also there should be a system which allows for an order of a compulsory participation of the parties rejecting their participation in the lawsuit by a joint owner(notwendige Streignenonssenschaft).

목차

I. 대상판결과 문제의 제기
  1. 대상판결의 사실관계와 경과
  2. 대상판결의 요지
  3. 문제의 제기
 Ⅱ. 총유(종중)재산의 특질과 보존행위
  1. 공동소유 유형으로서의 총유
  2. 종중재산의 소유형태와 보존행위
  3. 총유재산에 대한 과거 법원의 태도
 Ⅲ. 종중재산 관련 분쟁 해결방법
  1. 소송에 의한 해결절차 검토
  2. 다른 공동소유형태와의 비교
  3. 소의 이익과 합일확정의 필요성
  4. 소결
 Ⅳ. 대상판결의 검토
  1. 서
  2. 공동소유형태별 관리 ․ 처분의 요건
  3. 총유에 있어서 지분권 인정
  4. 총유물에 대한 구성원의 권리
 Ⅴ. 결론
  1. 대상판결의 문제점
  2. 입법과 또 다른 제안
 참고문헌
 

키워드

저자

• 최안식 [ Choi, An-Sik | 원광대학교 법과대학 강사, 법학박사 ]

참고문헌

발행기관

간행물

표지보기 관심저널 등록

• 간행물명

  원광법학 [Journal of Law research]

• 간기

  계간

• pISSN

  1598-429X

• eISSN

  2508-4526

• 수록기간

  1962~2026

• 등재여부

  KCI 등재

• 십진분류

  KDC 360 DDC 340