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財團法人出捐財産의 歸屬時期 小考

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A Exploratory Study on the Time of Belonging of Property Given by Endowment for the Incorporated Foundation

재단법인출연재산의 귀속시기 소고

김상현

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초록

영어

Under the time of belonging of property given by endowment, the article 48 of the civil act regulates two ways. The first is that in a case where the incorporated foundation is forme through a disposition inter vivos, the property given by way of endowment shall become the property of the juristic person as from the time when the juristic person is incorporated. The second, in a case where the incorporated foundation is formed through a will, the property so given shall be deemed to have vested in the juristic person as from the time when the will became effective. By the way the act of property given by endowment for establishing the incorporated foundation is the legal act, which aims the establishment for the incorporated foundation, such as the unilateral act. therefore if the real estate is appeared and incorporated foundation does registration of ownership transfer to it after its establishment, i could state that it owns the real estate according to the principle of the article 186 of the Civil Act, states the acquisition, loss of, or any alteration in, a real right by a juristic act over an immovable takes effect upon its registration. However the article 48 of the civil act regulates, in the case where the incorporated foundation is forme through a disposition inter vivos, and the incorporated foundation is formed through a will then it became effective, the property belongs to the incorporated foundation without the registration in both cases. It’s against the article 186 of the civil act. The recent case shows that in the clause 1 of the article 48 of the civil act would interpret that in a case where the incorporated foundation is forme through a disposition inter vivos, the property given by way of endowment shall become the property of the juristic person as from the time when the juristic person is incorporated means that in order to the property given by endowment will belong to the incorporated foundation, between the person who endow the property and the corporated body do not need the registration of the property. But over the relationship between the corporated body and the third party, the registration of the property must be tranferred to the incorporated foundation for having it. Two kinds of the interpretation which are outwardly and inwardly means that the relative belonging of the property(ownership). And Korean civil act about the tranfer of the property is on formailism. Both thoughts caused lots of criticize and controversy of them. Therefore it stands to reason that the exsting regulation should include if there is the property given by endowment which needs the registation, transfer etc. for the alteration of a right, it must be qualified for being property of the incorporated foundation.

목차

Ⅰ. 序論
 Ⅱ. 實務的 接近
 Ⅲ. 理論的 接近
 Ⅳ. 結論
 참고문헌
 ABSTRACT

저자정보

  • 김상현 Kim, Sang Hyun. 한북대학교 사회과학대학 특허법률학과 교수

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