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헌재 2000. 7. 20. 선고 98헌바74 공보 [민사소송법 제48조 등 위헌소원 ' (민법 제70조 제3항 및 제2항, 비송사건절차법 제34조)']

[공보(제48호)]

Main Issues

A. The case rejecting a claim seeking a decision of limited unconstitutionality on the ground that the claimant asserted that the ground for unconstitutionality occurred only by analogical application to the court outside the scope of the regulation of the law subject to adjudication, and there is no room to deem that the appeal in this case is a claim seeking a confirmation of unconstitutionality of the law itself, and it merely argues the legitimacy of judicial action by analogical application of the law subject to

(b)The legality of constitutional complaint in accordance with Article 68, paragraph 2, of the Constitutional Court Act, brought without receipt of a decision to dismiss the request for a constitutional complaint (negative);

Summary of Decision

A. Of the legal provisions to be tried, Article 70(3) of the Civil Act applies only to an incorporated association, and Article 48 of the Civil Procedure Act does not apply to non-corporate associations, and it is apparent that Article 70(3) of the Civil Act does not apply only to litigation cases, and Article 48 of the Civil Procedure Act does not apply to non-corporate cases. There is no possibility of multi-legal interpretation possibility or various scope of application. The claimant’s contesting of each of the above legal provisions is not an unconstitutional interpretation method or scope within each of the above legal provisions itself but an application to non-corporate non-corporate non-corporate non-corporate non-corporate non-corporate cases. Thus, this part of the appeal is unconstitutional, and it is not possible to accept it as a limited constitutional claim that can be viewed as disputing

It is not caused within the scope of the provision, but only caused by the court to apply the above provision by analogy. Thus, this part of a petition for a trial cannot be viewed as seeking confirmation of unconstitutionality of the law itself, and it is only a dispute over the legitimacy of judicial action by analogy of the above provision. Thus, it is unlawful because it does not meet the requirements for a petition for a trial.

(b)The constitutional complaint under Article 68(2) of the Constitutional Court Act may be filed when the request for adjudication on the constitutionality of a law is rejected. The claimant did not claim the unconstitutionality of Article 70(2) of the Civil Code or Article 34 of the Non-Contentious Case Litigation Procedure Act in filing the request for adjudication on the constitutionality of a law, and the Supreme Court did not render any judgment on the above. Therefore, the part of the request for adjudication is unlawful because it does

Dissenting Opinion by Justice Lee Young-soo and Justice Kim Jong-soo

With respect to the application of the law by a court, which is a discretionary area, the Constitution, as long as it did not have the authority to determine the constitutionality of the law, orders the application of the law in accordance with the principle of separation of powers to prevent infringing on the legislative formation field by borrowing the application of the law. The analogical application of the law falls under the adjudication area of the Constitutional Court, the main duty of which is to maintain and maintain the unity and consistency of the legal system with the unity of the legal system with the establishment of the Constitution, as the discretion area of the court.

The examination of the constitutionality of a law that is the object of analogical application by analogy is that the executive branch made a subordinate norm for the enforcement of a law, and it is difficult to predict that there is no relationship with the provisions of a law at all, and thus, in a case where the executive branch exercised a public authority that infringes on the fundamental rights of the people, it shall make a substantial judgment in an adjudication on the constitutionality of the provision that infringes on the fundamental rights of the people, and make a declaration of limited constitutionality in an adjudication on the constitutionality of the provision that infringes on the fundamental rights of the people, and thereby setting the relevant boundaries in accordance with the Constitution ordering the scope of effectiveness inherent in the provision of the law itself. As such, if the law applied by analogical application falls under a matter that cannot be predicted to be entirely

On the other hand, although the claimant was omitted in the purport of the application for a request for an adjudication on constitutionality, Article 70 (2) of the Civil Code and Article 34 of the Non-Contentious Case Litigation

Article 48 of the Civil Procedure Act and Article 70(3) of the Civil Act provide for the requirements for an application for a special meeting call and the procedures for civil non-litigation as stated in the purport of the above application. Thus, in the application of Article 48 of the Civil Procedure Act and Article 70(3) of the Civil Act, it serves as a premise for the application of Article 48 of the Civil Procedure Act and Article 70(3) of the Civil Act. If the above provisions are comprehensively and comprehensively seen, the court’s rejection of the special appeal by the petitioner and the application of both of the above provisions can not be separated from each other in this case, and thus,

Documents subject to adjudication;

Article 48 of the Civil Procedure Act (Law No. 547 of April 4, 1960)

Article 70(2) and (3) of the Civil Act (Law No. 471 of February 22, 1958)

Article 34 of the Non-Contentious Case Litigation Procedure Act (wholly amended by Act No. 4423, Dec. 14, 1991)

[Reference Provisions]

Article 68 (2) of the Constitutional Court Act

Reference Cases

B. Constitutional Court Decision 89Hun-Ma221 April 28, 1994, Supreme Court Decision 6-1, 239

Constitutional Court Decision 96Hun-Ba12 dated November 27, 1997, Supreme Court Decision 9-2, 607

Constitutional Court Decision 97Hun-Ba38 dated September 30, 1998, Supreme Court Decision 10-2, 530

Parties

Cheong-gu ○○ Military Academy 8th ○○○○

Chairperson of the Representative Hongju

Attorney Kim Byung-hoon

Supreme Court Decision 98Do10 Decided the Extraordinary General Meeting

Text

The appeal shall be dismissed.

Reasons

1. Summary of cases and subject matters of adjudication;

A. Summary of the case

The ○○○ Military Academy, an association which is not a juristic person, requested the president to convene an extraordinary general meeting, and the 159 persons other than the 8th head of ○○○○○○○, et al., a non-juristic person, requested the president to convene an extraordinary general meeting. However, the Chairperson did not follow the general meeting convocation procedure, and the Seoul District Court requested the applicant to call an extraordinary general meeting on November 15, 1997, and held an extraordinary general meeting on December 10 of the same year with the permission.

After making a special appeal (98G10) to the Supreme Court against the above decision of permission for convocation, the claimant applied Article 48 of the Civil Procedure Act and Article 70(3) of the Civil Act to an association which is not a juristic person in civil non-litigation cases on the ground that it is unconstitutional to apply Article 48 of the Civil Procedure Act and Article 70(3) of the Civil Act to an association which is not a juristic person. However,

2. At the same time, the applicant’s request for adjudication on unconstitutionality was dismissed, and the applicant filed an adjudication on constitutionality on the 17th of the same month.

(b) Object of adjudication;

The object of adjudication is whether Article 48 of the Civil Procedure Act, Article 70(2) and (3) of the Civil Act, Article 34 of the Non-Contentious Case Litigation Procedure Act is unconstitutional, and the contents of each law are as follows.

(1) An association or foundation which is not a juristic person under the Civil Procedure Act (Law No. 547 of Apr. 4, 1960), Article 48 (Legal Capacity of Non-juristic Persons) may, in its name, become a party to a lawsuit.

(2)Article 70 (Special General Meeting) and Article 70 (Special Meeting) and (2) of the Civil Act (Law No. 471 of February 22, 1958) and Article 70 (General Meeting) and (1/5 of the total members shall convene an extraordinary meeting when a request stating the purpose of the meeting is made. This quorum may be increased

(3) If a director fails to take the procedure for convening a general meeting within two weeks after the request under the preceding paragraph, the member requesting it may convene such meeting with the permission of the court.

(3) Cases under the provisions of Articles 34 and 70 (3) of the Civil Act shall be under the jurisdiction of the collegiate division of the district court in the location of the principal office of the corporation.

(2) The provisions of Articles 80 and 81 shall apply mutatis mutandis to an application for permission to convene an extraordinary general meeting and a judgment on the case, respectively, under Article 70 (3) of the Civil Act.

2. The claimant's assertion and opinions of the related agencies;

A. The claimant's assertion

In the Non-Contentious Case Litigation Procedure Act, the legislators did not provide for the provision that Article 48 of the Civil Procedure Act, which recognizes the capacity of a party to an association which is not a juristic person, is intended to apply mutatis mutandis to autonomous resolution of disputes in this association. The court’s application of Article 70(2) and (3) of the Civil Act and Article 34 of the Non-Contentious Case Litigation Procedure Act to an association which is not a juristic person without any legal basis to allow minority members to convene an extraordinary meeting with the permission of the court, goes beyond the scope of interpretation, and this is an infringement of the freedom of association

B. Reasons for dismissing a court’s motion for adjudication on constitutionality

Article 48 of the Civil Procedure Act provides that an unincorporated association shall institute a lawsuit in its name as a party or as the other party, and Article 70(3) of the Civil Act provides that an unincorporated association shall institute a lawsuit against such association, and Article 70(3) of the Civil Act provides that a small number of members with the opinion of the person with authority

Article 21 of the Constitution guaranteeing the freedom of association does not violate Article 21 of the Constitution, since it is required to convene an extraordinary general meeting with the permission to convene an association.

(c) Opinions of the Minister of Justice;

This request for a trial is unlawful as it is substantially subject to a court judgment.

The first sentence of Article 6(1) of the Non-Contentious Case Litigation Procedure Act provides that “The persons concerned in the case may have a litigation capacity act on behalf of the litigation capacity,” and Article 47 of the Civil Procedure Act provides that “The party capacity ? shall be governed by the Civil Act and other Acts, except as otherwise provided in this Act.” Thus, regardless of whether the Non-Contentious Case Litigation Procedure Act provides for the party capacity, the party capacity shall be recognized in civil non-contentious cases. In exercising the autonomy granted by an organization under Article 70(1) and (2) of the Civil Act in relation to the convening of an extraordinary general meeting, the court shall act as a guardian as a supplement under Article 70(3) of the Civil Act. Thus, the court does not

3. Determination

We examine the legal requirements of the instant petition for adjudication.

(a)First of all, consider appeals on article 70(3) of the Civil Code and article 48 of the Civil Procedure Act;

Since the object of adjudication on constitutional complaint under Article 68 (2) of the Constitutional Court Act is limited to the law, the request for adjudication should be unconstitutionality of the law itself.

In full view of the purport and reasons for the claim, it is not against the Constitution that the claimant intends to dispute this constitutional complaint, but to apply each of the above provisions to the “unincorporated association” rather than the above provisions which are considered as the object of the adjudication. Therefore, allowing a minority member of an unincorporated association to convene an extraordinary general meeting with the permission of the court would infringe the freedom of association which is not a juristic person.

However, Article 70(3) of the Civil Act only provides that minority members of an incorporated association may convene an extraordinary general meeting with the permission of the court, and the legal consequence that a minority member of an unincorporated association may convene an extraordinary general meeting with the permission of the court does not arise from the above provision itself. The ground for unconstitutionality asserted by the claimant is not arising within the scope of the above provision, but rather arises from the outside of the scope of the regulation under the above provision, and the court only applies the above provision concerning the “incorporated association” to “unincorporated association.”

The same applies to Article 48 of the Civil Procedure Act. The grounds for unconstitutionality asserted by the claimant, namely, an unincorporated association.

The legal result that a person can become the other party to the "non-contentious case" case of this special meeting is not attributable to the above legal provision on the capacity of the non-corporate party itself, but only the non-corporate party's application of this provision to the non-corporate non-contentious case.

Meanwhile, the constitutional complaint under Article 68(2) of the Constitutional Court Act does not seek a determination of unconstitutionality of the legal provision itself, but rather, a claim seeking a determination of unconstitutionality of the legal provision itself is allowed to the extent that it can be seen as disputing the unconstitutionality of the legal provision itself (see, e.g., Supreme Court Decision 92Hun-Ba40, Jul. 21, 1995; Supreme Court Decision 7-2, 34, 37; Constitutional Court Decision 95Hun-Ba27, Feb. 20, 197; Supreme Court Decision 9-1, 156, 161-162).

The Constitutional Court's decision of limited unconstitutionality is to exclude the unconstitutional elements of the legal provision and to determine the constitutional meaning or scope of application. Thus, a petition for a trial seeking such a decision of limited unconstitutionality is premised on the possibility of multi-legal interpretation or various scope of application, and on the premise that a constitutional interpretation can be made (see Constitutional Court Decision 92Hun-Ga3, April 28, 1994; Supreme Court Decision 6-1, 203, 221-22, April 28, 1994).

However, Article 70(3) of the Civil Act applies only to an incorporated association, and in the case of an unincorporated association, it is apparent in its literal sense that it is not applicable, and there is no possibility of multi-legal interpretation possibility or diverse scope of application. The claimant’s argument about this provision is not an unconstitutional interpretation method or scope of application, but an “application” to an unincorporated association. Therefore, the claimant’s request for a trial is not likely to be accepted as a limited constitutional claim, which can be deemed to dispute the unconstitutionality of this Act itself. The same is also applicable to Article 48 of the Civil Procedure Act.

(b)To consider the appeal on article 70(2) of the Civil Code and article 34 of the Non-Contentious Case Litigation Procedure Act;

The constitutional complaint under Article 68 (2) of the Constitutional Court Act may be requested when the request for adjudication on the constitutionality of a law is rejected. Thus, the claimant did not request the adjudication on the constitutionality of a specific legal provision. Therefore, if the court did not dismiss the request, the request for adjudication on the constitutionality of a law is unlawful (Article 68 (2) of the Constitutional Court Act because it does not meet the requirements for the request for adjudication on the constitutionality of a law, the request for adjudication on the constitutionality of a law is unlawful (Article 68 (2) of the Constitutional Court Act (Article 89Hun-Ba21 of April 28, 1994; Article 6-1, 239, 256-257 of the Supreme Court precedents; Article 96Hun-Ba12 of November 27, 1997; Article 9-2, 607, 618 of the Constitutional Court Act; Article 10-2, 530, 536-537).

According to the records of this case, the claimant only contests the unconstitutionality of the application of Article 48 of the Civil Procedure Act and Article 70(3) of the Civil Act in filing an application for an unconstitutionality proposal, and Article 70(2) or 70(2) of the Civil Act that does not have any relationship with the above legal provisions.

The Supreme Court did not see the unconstitutionality of the application of Article 34 of the Appeal Procedure Act, and the Supreme Court did not make any judgment on it.

C. Accordingly, a request for a trial on Article 70(3) of the Civil Act and Article 48 of the Civil Procedure Act cannot be deemed to have been sought to confirm the unconstitutionality of the law itself, and it is nothing more than a dispute over the legitimacy of judicial action, which is applied to an association which is not a juristic person, such as the claimant, and therefore, it does not meet the requirements for a constitutional complaint under Article 68(2) of the Constitutional Court Act. Therefore, a request for a trial on Article 70(2) of the Civil Act and Article 34 of the Non-Contentious Case Litigation Procedure Act shall be dismissed in its entirety because

4. Conclusion

For the above reasons, except as otherwise provided in the Dissenting Opinion, this decision is delivered with the assent of all Justices who participated in the proceedings, with the assent of all Justices, except as otherwise provided in the Dissenting Opinion.

5. Dissenting Opinion by Justice Lee Young-young and Justice Kim Jong-chul

We cannot agree with the majority opinion that dismisss a trial on the constitutionality of a law applied by analogy in a trial, and therefore we will clarify the reasons as follows.

(a)an adjudication on the constitutionality of the law applied by the court by analogy;

(1) Eligibility for constitutional judgment on the law applied by analogy

Since all state agencies bound by the Constitution are responsible for respecting and observing the fundamental rights of the people, the legislative department should have the legitimacy and rationality required by the Constitution, as well as when the legislative body enacted a law or the executive body prepares a subordinate norm (Presidential Decree, Ministerial Ordinance, etc.) for the enforcement of this Act.

In a court’s judgment on specific legal disputes, whether to apply the law by extending it to the part that is not included in the meaning of the text that expresses the law applicable to the case, or whether to reduce the expression of the provision to the immanent and limited extent is, in principle, belong to the discretion of the court. However, as the Constitution did not grant the authority to determine the constitutionality of the law of the court that is the discretionary area, it orders the court to avoid infringing on the legislative formation field by borrowing the application of the law in accordance with the principle of separation of powers in accordance with the principle of separation of powers.

The claimant asserts that Article 70(2) and (3) of the Civil Act concerning incorporated associations and Article 34 of the Non-Contentious Case Litigation Procedure Act apply mutatis mutandis to an association which is not a corporation, which is not specified in the language and text of the provision, is in violation of the freedom of association, which is an autonomous association, and is in deviation from the scope of interpretation. However, by analogy of this Act,

As a result, the examination of whether the legitimacy and rationality of the Constitution is appropriate, and whether it is an infringement on the legislative formation field is belonging to the adjudication area of the Constitutional Court, the main purpose of which is to maintain and promote the unity and consistency of the legal system with which the Constitution is established. Article 107(1) of the Constitution and Article 41(1) of the Constitutional Court Act, which state “the premise of a trial whether the law violates the Constitution”, are “the premise of a trial,” and it does not mean that the court excludes the law applied by analogy, so there is eligibility for constitutional judgment.

(ii)The legitimacy of constitutional determination of the laws subject to an adjudication applying prosecution;

We do not agree with the majority opinion that the examination of the unconstitutionality of the law, which is the object of analogical application in this case, is judged to be possible only when there is an excessive unconstitutional element of the law itself in terms of its unconstitutionality or unconstitutionality.

(a)The reasons for this is that, with respect to A legal provisions that do not have any unconstitutional elements of the unconstitutionality or unconstitutionality of the law itself, the Administration makes subordinate rules (Presidential Decrees and Ordinances, etc.) for the enforcement of the law, and that, in addition to “a with the nature of “a and a similar nature” and “b, which cannot be predicted and predicted to have no relationship with the provisions of those provisions. If a public authority is exercised on the basis of these sub-laws that infringes on the fundamental rights of the people, the judgment of the court on whether the provisions of A, which are the basis for the exercise of the public authority, are unconstitutional or not, shall not be in violation of the Constitution (a) or shall be deemed to include the matters referred to in Article A (b).”

Like the same, the court should make a substantial decision not to dismiss the match on the laws applied by analogy while trying to decide on specific legal disputes, but to make a conclusion statement (which corresponds to the above-mentioned A as seen in the judgment on the merits of this case) according to the aforementioned classification. If the law applied by analogy falls under the above-mentioned B, it is not just interpretation, but also the infringement of legislative power that is contrary to the principle of separation of powers, and thus, the limited declaration of constitutionality is made.

Our conclusion indication is that the boundary is set according to the Constitution that orders the range of validity of the law inherent in the A clause itself, but it is not to involve the legitimacy of the judicial action.

(B) The majority opinion of the court on the constitutionality of A legal provisions enacted by the Legislative Department, and intentionally, at a court trial, A(A).

In addition, in this case where there is no provision stating that the law applied to a trial is exempted from ex post facto control as to whether it is unconstitutional, the majority opinion, which leads to the conclusion that the requirements of judgment on the merits are inappropriate as if there is a defect in the requirements of judgment on the merits itself, is not determined, and the majority opinion, which leads to the conclusion that the requirements of judgment on the merits are not satisfied, needs to have the persuasive reasoning for the legitimacy and rationality of the Constitution, which should not be provided for such exceptions.

Moreover, it would immediately deny the unconstitutionality of the relevant norm(b) itself, and it would eventually undermine the legitimacy of the system of adjudication on the constitutionality of the law provided in the Constitution. In addition, it would result in infringing the legitimacy of the system of adjudication on the constitutionality of the law.

(b) Scope of subject to adjudication;

Although Article 48 of the Civil Procedure Act, Article 70(3) of the Civil Act, the Constitutional complaint is filed in addition to the above provision, Article 70(2) of the Civil Act and Article 34 of the Non-Contentious Case Litigation Procedure Act are added to the purport of the request.

However, the Supreme Court dismissed the petitioner’s special appeal and applied all the above provisions to the decision and applied them to analogical application to the above. The addition of the purport of the petition in this appeal is due to the reason for the Supreme Court’s special appeal and dismissal. Article 70(2) of the Civil Act and Article 34 of the Non-Contentious Case Litigation Procedure Act provide for the requirements for an application to convene an extraordinary general meeting and the procedures for civil non-litigation. The provision is premised on cases where Article 48 of the Civil Procedure Act and Article 70(3) of the Civil Act are applied (see, e.g., Constitutional Court Decision 93Hun-Ga15, Jun. 30, 1994; 6-1, 576, 584). Considering these provisions comprehensively and comprehensively, it is not possible to separate from each other in this case where a law applied to the portion not specified in the language and text is in question (see, e.g., Supreme Court Decision 200Hun-Ba14, Dec. 26, 1996; 8-2808).

C. Judgment on the merits

(1) Whether Article 48 of the Civil Procedure Act violates the Constitution

Article 48 of the Civil Procedure Act provides for a party capacity of an unincorporated association.

Article 275(1) of the Civil Act provides that a member of the association shall jointly own the property (Article 275(2) of the Civil Act) when a member of the association owns the property as an aggregate (Article 275(2) of the same Act) and the management and disposition of the collective ownership (Article 276(1) of the same Act) shall be made by a resolution of the general meeting of members (Article 276(1) of the same Act). Each member may use or profit from the property in accordance with the articles of association or other regulations (Article 276(2) of the same Act). The rights and duties of a member of the association shall be acquired or lost by acquiring or losing the status of a member (Article 277 of the same Act). In the case of real estate, an association shall have the substance of the association and have a dispute arising in the course of social activities or transactions through its representative or manager as a party to the lawsuit (Article 30 of the Registration of Real Estate Act). Article 130 of the Framework Act on National Taxes provides that an association shall not be subject subject to tax payment (Article 13).

Therefore, since an association which is not a juristic person is recognized as the subject of rights and obligations separate from the members as seen below, Article 48 of the Civil Procedure Act recognizes the party capacity in a lawsuit is necessary and appropriate, and therefore, it is acceptable to accept the legitimacy and rationality of the Constitution.

(2) Whether applying Article 70(2) and (3) of the Civil Act and Article 34 of the Non-Contentious Case Litigation Procedure Act to an unincorporated association is in violation of the Constitution

(A) Article 47 of the Civil Procedure Act provides, “The party ability ? is governed by the Civil Act and other Acts except as otherwise provided for in this Act.” In light of the Civil Act, the joint ownership provisions in the ownership section, as seen earlier, recognize the substance of an association which is not a juristic person (Articles 275 through 277) and the general provisions in the head of a juristic person, and the juristic person does not establish a juristic person (Article 31). The establishment of a nonprofit association or foundation is based on the principle of permission (Article 32) and an association which is not a juristic person (Article 39) is based on the principle of permission (Article 32), and there is no provision in respect of an association which is not a juristic person. This is a critical legislative defect (the same shall apply to the Non-Contentious Case Litigation Procedure).

However, the court recognizes an unincorporated association, separate from the members, even though it does not fulfill the requirements for establishment under the Civil Act through precedents.In other words, the court has an organization, such as establishing rules with its own purpose and, based on this, appointing a decision-making body and a representative who is the executive body, and the decision of the institution or the method of executing its affairs is in principle

In addition, regardless of changes arising from membership, withdrawal, etc. of a member, the organization itself continues to exist, regardless of the method of representation, the operation of a general meeting or a board of directors, etc., the composition of capital, the management of property, and other important matters as an unincorporated association (Supreme Court Decision 92Da2431, Jul. 10, 192; 1992, 2360).

Article 48 of the Civil Procedure Act provides that an unincorporated association may conduct litigation in its name with respect to a dispute arising in the course of social activities or transactions, and the provision is in conformity with the Constitution.

In determining an association’s intent, it is a premise for an association’s genuine intent to conduct the procedural acts in the name of an association which is not a juristic person. In the event that this association’s intent is subject to the articles of association, and its purpose cannot be achieved only by the articles of association, it is necessary to regulate the internal relationship of an association which is not a juristic person, supplementaryly. However, in this case where there is a lack of law to regulate the internal relationship of an association due to a legislative defect, it is not limited to permission pursuant to Article 32 of the Civil Act, but it is not different from that of an association under the Civil Act in terms of its organization and operation. Accordingly, it is consistent with the principle that the Civil Act’s provisions and the Non-Contentious Case Litigation Procedure Act’s analogical application to the provisions on a juristic person under the Civil Act and the Non-juristic Case Litigation Procedure Act’s application to supplement the defect, not only

(B)In addition, Article 70(3) of the Civil Code and Article 34 of the Non-Contentious Case Litigation Procedure Act provide that the person entitled to request the convocation of the extraordinary meeting may convene the extraordinary meeting with the permission of the collegiate division of the district court at the seat of the principal office of the association, while the latter part of Article 70(2) of the Civil Code provides that the person entitled to request the convocation of the extraordinary meeting may convene the extraordinary meeting with the permission of the collegiate division of the district court at the seat of the principal office of the association in case where the person entitled to request the convocation of the extraordinary meeting fails to take the procedure within two weeks, even if more than one fifth of the members, etc. request the convocation of the extraordinary meeting in accordance with Article

Article 70(2) and (3) of the Civil Act and Article 34 of the Non-Contentious Case Litigation Procedure Act stipulate that the internal relations of an incorporated association shall be regulated, thereby interfering with and restricting the autonomy of the parties. This provision provides that when an incorporated association which is the subject of rights and obligations is unable to lead the genuine intent of an incorporated association due to internal disputes, it recognizes the right to call an extraordinary general meeting to more than a certain scale of its members, and if the articles of incorporation of an incorporated association provide otherwise. Furthermore, the crossing or neglect of the person holding the authority to call an extraordinary general meeting

The court participated in so that the general assembly stipulated in the articles of incorporation of an incorporated association can function as a system. The recognition of these series of measures also constitutes an inevitable means of resolving and coordinating profits and losses arising between the members of an incorporated association and the need and minimum means of resolving and coordinating conflicts among the members of an incorporated association, and thus, the legitimacy of the Constitution as well as the rationality of the means is acceptable.

In short, applying Article 70(2) and (3) of the Civil Act and Article 34 of the Non-Contentious Case Litigation Procedure Act to an association which is not a juristic person cannot be deemed to infringe on the autonomy or freedom of association formation guaranteed by the Constitution. The pertinent provision of this Act, which is the issue in this case, is essentially different from the penal provisions, tax regulations, etc., the Constitution prohibits by analogy.

D. Conclusion

For the reasons examined above, we believe that Article 48 of the Civil Procedure Act (Act No. 547 of Apr. 4, 1960), Article 70 (2) and (3) of the Civil Act (Act No. 471 of Feb. 22, 1958), Article 34 of the Non-Contentious Case Litigation Procedure Act (wholly amended by Act No. 4423 of Dec. 14, 1991) is correct to declare that it does not violate the Constitution, and therefore, oppose the majority opinion rejecting this.

Judges

Justices Kim Yong-sik (Presiding Justice) and Kim Jong-hee-hee

Shin Chang-joon Kim Jong-young (Presiding Justice)