1人組合의 존재 가능성에 관한 考察

초록

Our precedents affirm the possibility of the existence of a one-man association if one withdraws from the two-men association. As discussed in this paper, such an approach is not appropriate. The association was originally formed from Roman law by a member's contract(societas) and was extinguished according to the will of the member. It is defined as one of the typical contracts in our civil law. However, due to the influence of Germanists in the process of enacting the German Civil Code, the nature of organization was emphasized, and its influence even reached the Korean Civil Code. Even acknowledging such a tendency, it is an excessive theoretical construct to affirm a one-man association. This is because there is a limit to organizational nature of the association and it goes against the nature of the association which consists of multiple members. The concept that the association relationship ends, but no dissolution, is difficult to presuppose compared to other grounds of dissolution. The precedents can be seen positive to maintain the association's residual business from the view on the public interest, but it is believed that it cannot escape legal limitations due to its practical needs. It is difficult to base the interpretation of the parties' opinions on a one-man association, as the parties are unable to make a non-association an association. If the court wants to make the maintain remaining business, I think it would be more appropriate to seek other measures, such as recognizing the resolution of the association within the provisions of the association law and keeping the business alive as a consensus on liquidation methods. On the macroscopic scale, I think it is necessary to reflect on the association's character as a contract. I think that's the fundamental difference between a association and others as a organization and a way to enhance its usability.

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