민법상 組合의 부동산 취득 및 처분에 관한 小考 - 조합원 1인 명의의 등기에 관한 판례의 태도를 중심으로 -

초록

In our legal system, the association is the organization with the individuality of its members and the weakest character as organization. According to our precedents and theory by scholars, as the assocition's capacity of legal activity, litigation and registration is not admitted, when acquiring real estate, all members’ names must be registered as joint owners. In order to dispose of real estate, unlike the attitude of Supreme Court, it is reasonable to see that the consent of all members of the association is required. Unlike in handling business other than the disposal of real property, it is appropriate to decide that the provisions of real property law take precedence, and it seems to be consistent with the nature and characteristics of the association. The precedents seem to have been approached as an extension of the emphasis on the character of organization. By the way, it is often seen that instead of registering in the name of all members, it is registered in the name of one member in actual transactions. This may be for procedural convenience, but according to Supreme Court’s precedents, in this case, the Act on the Registration of Real Estate under Actual Titleholder’s Name would be applied, so that the relevant legal rules make the cases complicated and rather controversial. In particular, caution is required as there may be room for a difference in the applicable legal rules in the land acquired by succession and the newly-built building. However, when the registration is completed in the name of one member, it can be seen differently if the members have agreed to perform the association's work in that way. In other words, in this case, it is not considered a title trust to which above act is applied, but it can be understood that it is valid to apply the association law to perform the its business. Moreover, In the case of registration in the name of a business execution member, it can also be resolved by rules of under the association law.

키워드