로마법상 조합(societas)의 결성과 조합원의 변경 － 조합의 계약성을 중심으로 －

초록

In the resources of Roman law, the nature of the societas formed through the contract is well revealed. The same applies not only to the formation itself, but also to the change of the members (socii) who are the subject of the contract. In this paper, to confirm that point, I examined in detail the formation of societas and changes in members under Roman law, focusing on the contents of Institutiones (Gaius) and Digesta. According to the contents, it can be said that freedom of formation and freedom of withdrawal of members are thoroughly guaranteed under Roman law. The formation, object, and existence of a societas are determined by the contract, but it does not limit the freedom of members to leave the societas. It can be seen that the content of the contract is also determined within the scope of guaranteeing such freedom. In exaggeration, under Roman law, societas is a system that extremely guarantees freedom of participation and departure. In addition, since a societas under Roman law is established as a contract based on mutual trust, it is important to know who the contracting party is, so a change in the membership cannot be assumed. Such a societas under Roman law can be said to be the original form of the association in Korean civil law. From the perspective of contract formation and membership change, the status of the party to the association under Korean civil law is established on the basis of the contract, and it can be seen that the character of organization is added on the basis of the contract. While the nature of the association established under Roman law, that is, the fulfillment of the intentions of the parties, was maintained, the character of an independent organization was added according to social needs. This point is also worth referencing in the interpretation and legislative theory of Korean civil law.

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