Characteristics of the legal institution of co-ownership in Korea

Abstract

The present article examines the legal institution of co-ownership in the Civil Code of the Republic of Korea (hereinafter — CC RK), with the center of focus being on joint and collective ownership. Unfortunately the Civil Code was prepared rather hastily in the aftermath of more than three decades of colonial rule under the Japanese Empire and the Korean War of 1950–1953. As a result the CC RK has no lack of legislative errors and shortcomings. One of the more serious of these is the conflict of norms on joint ownership. Similar, if not almost identical, provisions on joint ownership exist in Part II (Real Rights) and Part III (Claims) of the CC RK. It is necessary to resolve this conflict of norms by repealing the problematic provision, i. e. Article 704 (Partnership-ownership of Partnership Property), as well as amending provision, i. e. paragraph 2 Article 271 (Partnership-ownership of Property), so as to have the latter conform better to the whole structure of the Civil Code in general. The norms on collective ownership pose no less of a problem for the application of the Civil Code. Although the legal concept of collective ownership was born and developed in German jurisprudence, the institution never made it into the German Civil Code. It was at the opposite side of the globe in Korea that collective ownership was recognized and stipulated in the Civil Code. However such legislation cannot be deemed rational. The concept of collective ownership does not reflect the characteristics of the Korean society and the various transactions that are conducted therein, and therefore lacks practicality and applicability. The sole reason for including norms of collective ownership in the first place was to regulate the particular co-ownership form of unregistered incorporations. It would have been more desirable to include the relevant provisions not in Part II (Real Rights) but Chapter III (Juristic Persons) of Part I (General Provisions), and recognize the grounds for the provisions on juristic persons to apply to unregistered incorporations, unless registration is deemed essential for the application of such norms. Aside from legislative recommendations for addressing the current problems of the Civil Code, the author of the present paper provides a critique of the legal thinking and doctrines on various aspects of co-ownership in Korea.