2026년 02월 05일 출간 | ISBN : 1198566272 | 697쪽 | 4판

제1장서론 제2장법인 아닌 사단ㆍ재단의 의의와 능력 등 Ⅰ. 법인 아닌 사단ㆍ재단의 의의와 종류 등···························································27 1. 법인 아닌 사단ㆍ재단의 의의······················································································27 가. 법인 아닌 사단의 의의····························································································27 나. 법인 아닌 재단의 의의····························································································30 2. 단체와 법인 아닌 사단ㆍ재단의 종류··········································································31 가. 단체의 종류·············································································································36 나. 법인 아닌 사단ㆍ재단의 종류··················································································36 (1) 법인 아닌 사단의 종류·······································································································36 (2) 법인 아닌 재단의 종류·······································································································44 다. 다른 법인 또는 비법인과 구별················································································45 라. 상급단체와 구별······································································································46 3. 법인 아닌 사단ㆍ재단의 감독과 설립인가 등······························································47 Ⅱ. 법인 아닌 사단ㆍ재단의 성립요건······································································48 1. 법인 아닌 사단의 성립요건··························································································48 2. 법인 아닌 재단의 성립요건··························································································51 Ⅲ. 법인 아닌 사단ㆍ재단의 법률적용과 법인격부인론···········································52 1. 법인 아닌 사단ㆍ재단의 법률적용과 능력···································································52 2. 법인격부인의 법리 적용·······························································································54 8 목차 Ⅳ. 법인 아닌 사단ㆍ재단의 능력············································································· 57 1. 법인 아닌 사단의 권리능력·························································································· 57 가. 권리능력과 행위능력······························································································· 57 나. 당사자능력 및 소송능력·························································································· 61 (1) 당사자능력·························································································································· 61 (2) 법인 아닌 사단과 재단의 당사자능력················································································ 63 (3) 조합의 당사자능력·············································································································· 72 다. 재산소유 및 관리능력······························································································ 76 (1) 법인 아닌 사단··················································································································· 76 (가) 총유······························································································································ 76 ① 법인 아닌 사단의 부동산등기···················································································· 78 ② 총유물의 관리 및 처분······························································································ 82 ③ 법인 아닌 사단의 소제기와 입증책임······································································· 87 (나) 준총유 기타·················································································································· 88 (다) 합병에 유사한 통합 등의 경우····················································································· 91 (라) 법인 아닌 사단별 개별적 고찰····················································································· 91 ① 교회··························································································································· 91 ② 사찰재산···················································································································· 94 ③ 종중재산···················································································································· 96 ④ 집합주택의 입주자대표회의······················································································· 99 ⑤ 집합건물의 관리단··································································································· 101 (2) 법인 아닌 재단················································································································· 102 라. 불법행위능력·········································································································· 103 (1) 사단법인··························································································································· 103 (2) 법인 아닌 사단················································································································· 105 마. 납세의무와 파산능력······························································································ 107 (1) 납세의무··························································································································· 107 (2) 파산능력··························································································································· 111 바. 재판권행사············································································································· 114 2. 법인 아닌 재단의 권리능력························································································ 114 목차 9 제3장법인 및 법인 아닌 사단ㆍ재단의 성립과 부동산등기용등록번호 등 Ⅰ. 정관···················································································································116 1. 정관의 필요성·············································································································116 2. 정관의 의의와 효력발생·····························································································117 3. 정관의 기재사항·········································································································120 4. 정관의 변경················································································································122 5. 법인 아닌 사단ㆍ재단의 경우····················································································123 Ⅱ. 설립과 주무관청의 허가····················································································124 1. 민법법인·····················································································································124 2. 법인 아닌 사단ㆍ재단·································································································128 Ⅲ. 법인 아닌 사단ㆍ재단의 성립과 등기······························································132 1. 설립중의 법인·············································································································132 2. 민법법인의 성립과 설립등기······················································································133 3. 법인 아닌 사단ㆍ재단(창립총회 포함)········································································134 가. 성립과 효력···········································································································134 나. 창립총회·················································································································137 다. 주사무소와 분사무소······························································································138 라. 설립무효·················································································································139 4. 명칭과 동일성 여부 판단···························································································142 5. 인감신고와 인감증명··································································································144 Ⅳ. 법인 아닌 사단ㆍ재단의 부동산등기용 법인등록번호부여·······························145 1. 부동산등기용등록번호 부여기관과 부동산등기···························································145 2. 부여절차 등················································································································148 □ 법인 아닌 사단ㆍ재단등록번호의 구성체계···································································148 3. 등록번호 부여신청시에 필요한 자료(종중의 경우)·····················································153 가. 종중규약 예시········································································································153 나. 최초 부동산등기용등록번호 부여를 위한 대표자에 관한 의사록··························156 10 목차 다. 부동산등기용등록번호를 부여 받은 후 대표자 변경을 하는 경우 의사록············158 4. 법인 아닌 사단ㆍ재단의 존재를 증명하는 자료로서의 기능······································160 5. 부동산등기용등록번호신청관련 각종 양식··································································160 □ 부동산등기용등록번호부여신청서(법인 아닌 사단ㆍ재단 및 외국인의 부동산등기용 등록번호 부여 절차에 따른 규정 시행규칙)············································161 □ 등록번호화일 변경신청서(법인 아닌 사단ㆍ재단 및 외국인의 부동산등기용 등록번호 부여 절차에 따른 규정 시행규칙)··································································162 □ 부동산등기용등록증명서발급신청서(법인 아닌 사단ㆍ재단 및 외국인의 부동산등기용 등록번호 부여 절차에 따른 규정 시행규칙)············································163 □ 부동산등기용등록번호등록증명서(법인 아닌 사단ㆍ재단 및 외국인의 부동산등기용 등록번호 부여 절차에 따른 규정 시행규칙)············································164 Ⅴ. 국세기본법에 의한 대표자변경과 사업자등록 등·············································165 1. 국세기본법에 의한 법인으로 보는 단체의 승인신청과 대표자 변경··························166 2. 사업자등록··················································································································166 □ 사업자등록신청서(개인사업자용)(법인이 아닌 단체의 고유번호 신청서) (부가가치세법시행규칙)··································································································172 □ 사업자등록정정신고서(개인사업자용)(법인이 아닌 단체의 납세번호정정신고서)···········173 □ 사업자등록증··················································································································174 □ 휴업, 폐업신고서············································································································176 제4장법인 아닌 사단ㆍ재단의 기관과 임원 Ⅰ. 법인 아닌 사단의 기관·····················································································177 1. 기관의 필요성·············································································································177 2. 기관의 종류와 대표권의 행사····················································································178 3. 법인설립허가··············································································································179 4. 법인 아닌 사단의 경우·······························································································179 Ⅱ. 법인 아닌 사단의 임원·····················································································180 1. 임원의 선임과 임기연장·····························································································180 목차 11 가. 민법법인················································································································· 180 (1) 임원의 종류와 필요적 기관여부······················································································· 180 (2) 임원의 선임과 수············································································································· 181 (3) 임원선임의 효력발생········································································································ 183 (4) 임원의 임기와 임기연장··································································································· 186 나. 법인 아닌 사단······································································································ 188 (1) 임원의 종류······················································································································ 188 (2) 임원의 선임······················································································································ 188 (가) 일반적인 경우············································································································· 188 (나) 종중의 경우················································································································ 189 (다) 관리단의 경우············································································································· 191 (라) 사찰의 경우 ·············································································································· 193 (마) 교회의 경우················································································································ 193 (3) 법인 아닌 사단ㆍ재단과 이사와의 관계(권한)································································· 194 (4) 임원의 임기와 임기연장··································································································· 195 2. 임원의 퇴임················································································································ 196 가. 민법법인················································································································· 196 (1) 임원의 퇴임사유··············································································································· 196 (2) 임기만료··························································································································· 197 (3) 사임·································································································································· 198 (4) 해임·································································································································· 200 (5) 제명·································································································································· 202 (6) 임원승인 취소··················································································································· 203 (7) 기타 퇴임사유··················································································································· 203 나. 법인 아닌 사단······································································································ 203 (1) 임원퇴임사유···················································································································· 203 (2) 임기만료와 직무계속········································································································ 204 (3) 정년도달··························································································································· 205 (4) 사임·································································································································· 205 (5) 해임·································································································································· 207 (6) 사원의 제명과 임원의 자격상실······················································································· 210 (7) 임원승인 처분의 무효······································································································· 211 (8) 기타·································································································································· 212 12 목차 Ⅲ. 법인 아닌 사단의 대표권행사···········································································213 1. 민법법인·····················································································································213 가. 대표권 행사자········································································································213 나. 대표권행사 제한····································································································214 다. 대표권의 대리행사·································································································215 라. 대표권행사의 종기·································································································215 2. 법인 아닌 사단···········································································································215 가. 총설·······················································································································215 나. 대표권 제한···········································································································218 다. 대표권 행사의 효력·······························································································222 Ⅳ. 임시이사 및 이사 직무대행자···········································································223 1. 임시이사·····················································································································223 가. 임시이사의 의의····································································································223 (1) 민법법인···························································································································223 (2) 법인 아닌 사단·················································································································224 나. 임시이사의 선임····································································································225 다. 임시이사의 권한····································································································229 라. 집합건물법에 의한 관리인과 임시관리인·······························································230 2. 이사 직무집행대행자··································································································231 가. 의의·······················································································································231 나. 직무대행자를 선임할 수 없는 경우·······································································233 다. 직무대행자의 권한·································································································234 라. 직무대행자의 권리행사··························································································237 마. 법인 아닌 사단ㆍ재단····························································································239 3. 특별대리인··················································································································241 가. 민법상 특별대리인·································································································241 나. 민사소송법상 특별대리인·······················································································242 Ⅴ. 법인 아닌 재단의 임원·····················································································244 1. 민법규정의 준용·········································································································244 2. 법인 아닌 재단의 기관과 대표권의 행사···································································245 3. 이사의 직무집행정지 및 직무대행자··········································································245 목차 13 제5장 법인 아닌 사단ㆍ재단의 의사결정 Ⅰ. 법인 아닌 사단의 사원과 사원권····································································· 247 1. 사단법인의 사원권······································································································ 247 2. 법인 아닌 사단의 사원권··························································································· 248 가. 최초사원 및 가입··································································································· 248 (1) 사원자격의 취득··············································································································· 248 (2) 가입 및 탈퇴···················································································································· 249 (가) 일반적인 경우············································································································· 249 (나) 종중의 경우················································································································ 251 ① 고유의미의 종중······································································································ 251 ② 인위적인 조직행위를 거쳐 성립된 종중 유사단체··················································· 255 (다) 지역주택조합 등 특수한 법인 아닌 사단의 경우······················································· 257 (3) 사원의 권리의무··············································································································· 259 (4) 사원의 구분(정회원과 준회원)·························································································· 261 나. 사원의 변경 및 탈퇴, 제명 등··············································································· 262 (1) 사원의 변경······················································································································ 262 (2) 사원의 탈퇴와 탈퇴금지··································································································· 263 (3) 사원의 제명······················································································································ 265 (4) 사단의 분열과 사원·········································································································· 270 (5) 교단변경 또는 신규가입··································································································· 271 3. 사원명부····················································································································· 273 Ⅱ. 법인 아닌 사단의 사원총회·············································································· 273 1. 사원총회의 의의와 종류····························································································· 273 2. 사원총회의 권한········································································································· 275 가. 사단법인················································································································· 275 나. 법인 아닌 사단······································································································ 276 3. 사원총회의 소집········································································································· 278 가. 소집권···················································································································· 278 (1) 총설·································································································································· 278 (2) 대표자 궐위 또는 소집권자 불응시 소집권자·································································· 279 14 목차 (3) 소집권한 없는 자에 의하여 소집된 총회의 효력····························································· 282 (가) 주식회사의 경우········································································································· 282 (나) 재개발조합의 경우······································································································ 282 (다) 집합건물의 관리단의 경우·························································································· 283 (라) 종중의 경우················································································································ 285 ① 정기총회·················································································································· 285 ② 임시총회·················································································································· 285 (마) 교회의 경우················································································································ 286 (4) 직무대행자와 총회소집····································································································· 287 나. 임시 사원총회 소집허가신청················································································· 288 다. 소집통지대상과 소집통지와 통지기간···································································· 296 (1) 소집통지의 대상··············································································································· 296 (2) 도달주의··························································································································· 296 (3) 사단법인의 소집통지방법································································································· 297 (4) 법인 아닌 사단의 경우····································································································· 298 라. 소집장소와 소집목적사항······················································································· 302 마. 총회소집의 취소 또는 철회··················································································· 304 4. 사원총회의 결의사항과 결의방법··············································································· 304 가. 결의사항················································································································· 304 (1) 총설·································································································································· 304 (2) 법인 아닌 사단인 종중····································································································· 307 (3) 기타 재건축조합 등 법인 아닌 사단················································································ 308 나. 결의권···················································································································· 310 (1) 결의권의 의의와 소수사원권···························································································· 310 (2) 결의권의 제한과 대리행사································································································ 310 (3) 결의정족수와 결의요건····································································································· 313 (4) 결의권행사의 책임과 손해배상························································································· 315 다. 결의방법(선거포함)································································································ 316 (1) 보통결의··························································································································· 316 (2) 특별결의··························································································································· 317 (3) 의장·································································································································· 318 (4) 의결권 행사(선거포함)······································································································ 318 (5) 결의방법과 서면결의········································································································ 319 (6) 결의의 효력발생··············································································································· 323 (가) 일반적인 법인 아닌 사단··························································································· 323 목차 15 (나) 기타 법인 아닌 사단의 경우······················································································ 324 (다) 종교단체의 내부 재판································································································· 325 라. 사원총회결의와 사원의 책임················································································· 326 5. 의사록 작성················································································································ 327 6. 대의원회····················································································································· 329 가. 민법법인의 사원총회에 갈음한 대의원회의 설치·················································· 329 나. 법인 아닌 사단의 대의원회설치············································································ 331 (1) 총설·································································································································· 331 (2) 대의원회의 구성과 결의··································································································· 331 (3) 법원의 허가에 의한 대의원회소집···················································································· 333 (4) 대의원의 퇴임··················································································································· 334 다. 대의원회결의에서 대리참석 문제··········································································· 335 라. 주택법의 입주자대표회의의 경우··········································································· 336 마. 도시개발법에 의한 대의원회의 경우····································································· 337 바. 도시정비법에 의한 주택조합의 경우····································································· 338 사. 종중의 경우··········································································································· 339 7. 기타 기관··················································································································· 339 8. 사원총회결의 무효 등································································································· 340 가. 사단법인의 사원총회결의무효ㆍ취소ㆍ부존재의 소··············································· 340 나. 법인 아닌 사단의 사원총회결의무효ㆍ취소ㆍ부존재의 소····································· 341 (1) 총설·································································································································· 341 (2) 당사자······························································································································· 343 (3) 제소기간··························································································································· 344 (4) 총회의사의 효력발생과 철회···························································································· 345 (5) 총회 결의의 하자············································································································· 346 (6) 종교단체의 경우··············································································································· 355 다. 사원총회결의무효 등의 판결과 등기····································································· 357 라. 사원총회결의무효 등의 소에서 화해ㆍ인낙의 가부··············································· 357 9. 서류의 열람등사청구권······························································································· 358 Ⅲ. 재단법인의 의사결정························································································· 361 16 목차 Ⅳ. 법인 아닌 사단ㆍ재단의 이사회······································································· 362 1. 총설···························································································································· 362 2. 소집권과 소집통지기간······························································································· 363 3. 이사회소집 방법과 소집통지······················································································ 364 4. 이사회의 기능과 권한································································································· 366 5. 이사회의 결의방법······································································································ 367 가. 의장······················································································································· 367 나. 이사회결의············································································································· 368 6. 의사록 작성················································································································ 370 7. 이사회결의의 하자······································································································ 371 가. 소송절차················································································································· 371 나. 판결의 효력··········································································································· 371 제6장 법인 아닌 사단ㆍ재단의 합병과 분열 등 Ⅰ. 법인 아닌 사단ㆍ재단의 합병과 분열, 조직형태의 변경································· 373 1. 법인의 합병과 법인 아닌 사단ㆍ재단········································································ 373 가. 합병의 의의··········································································································· 373 나. 상법상 회사의 합병의 효력과 부동산등기····························································· 374 (1) 합병의 효력······················································································································ 374 (2) 합병과 부동산소유권이전등기··························································································· 374 다. 특수법인의 합병···································································································· 377 라. 민법법인과 법인 아닌 사단ㆍ재단의 합병····························································· 377 마. 법인 아닌 사단ㆍ재단의 통합················································································ 378 2. 법인의 분할(분열), 조직형태변경과 법인 아닌 사단ㆍ재단········································ 380 가. 분할의 의의··········································································································· 380 나. 주식회사와 사내근로복지기금법인 등의 분할과 부동산등기································· 380 (1) 주식회사와 사내근로복지기금법인 등의 분할·································································· 380 (2) 회사분할과 부동산등기····································································································· 381 다. 민법법인과 법인 아닌 사단과 재단의 분할(분열)················································· 383 라. 교회 및 사찰의 교단변경과 탈퇴와 가입······························································ 386 목차 17 마. 조직형태의 변경····································································································391 3. 승계와 부동산등기······································································································392 가. 총설·······················································································································392 나. 승계와 부동산등기·································································································393 Ⅱ. 존립기간, 명칭변경 등······················································································395 1. 존립기간 및 해산사유의 변경····················································································395 2. 명칭변경·····················································································································396 3. 목적변경 등 기타 변경·······························································································397 제7장법인 아닌 사단ㆍ재단의 해산과 청산 Ⅰ. 민법법인의 해산과 청산····················································································399 1. 법인의 소멸················································································································399 2. 청산인의 선임과 퇴임, 청산종결등기·········································································402 Ⅱ. 법인 아닌 사단ㆍ재단의 해산과 청산······························································406 1. 민법규정의 준용·········································································································406 2. 해산사유·····················································································································408 3. 청산인과 청산종결······································································································412 가. 법인의 소멸···········································

198 제4장 법인 아닌 사단ㆍ재단의 기관과 임원인 법인의 활동을 할 수 있는 경우에는 구태여 임기가 만료되는 이사로 하여금 이사로서의 직무를 계속 행사케 할 필요는 없고, 이와 같은 경우에는 그 이사는 임기만료나 사임으로 당연히 퇴임한다.669)
(라) 민법법인의 임기만료된 감사도 후임자가 선임될 때까지는 그 임무를 수행함이 부적당하다고 인정할 만한 특별한 사정이 없는 한 계속하여 감사로서의 권리ㆍ의무를 가지는 것이므로,670) 법인 아닌 사단의 경우의 감사도 동일하다고 할 것이다.
(3)사임
(가) 법인과 이사와의 관계는 위임계약관계이므로,671) 이사는 언제든지 해지에 의하여 사임할 수 있다(민 689①).
이 법인의 이사직을 사임하는 행위는 상대방 있는 단독행위라 할 것이어서, 그 의사표시가 상대방에게 도달함과 동시에 그 효력이 발생하고 법인의 승낙을 요하지 아니하며,672) 그 의사표시가 효력을 발생한 후에는 마음대로 이를 철회할 수 없다.673)
다만, 사임서 제출시 당시 즉각적인 철회권유로 사임서 제출을 미루거나, 대표자에게 사표의 처리를 일임하거나, 사임서의 작성일자를 제출일 이후로 기재한 경우 등 사임의사가 즉각적이라고 볼 수 없는 특별한 사정이 있을 경우에는 별도의 사임서 제출이나 대표자의 수리행위 등이 있어야 사임의 효력이 발생하고, 그 이전에 사임의사를 철회할 수 있다.674)
(나) 이사의 사임의 의사표시는 일정한 방식을 요하지 아니하나, 그 의사표시를 수령할 수 있는 권한이 있는 기관에 대하여 하여야 한다. 따라서 사임의 의사표시는 대표권이 있는 이사ㆍ이사장 또는 회장과 같은 대표자에게 하여야 하며, 이사가 사임하면 이를 등기하여야 한다(민 52).
대표권 있는 이사에게 사표의 처리를 일임한 경우에는 사임의사표시의 효과발생여부를 대표권자의 의사에 따르도록 한 것이므로, 대표권자가 사표를 수리함으로써 사임의 효과가 발생한다.
사임의 효력발생시기는 법인의 경우 등기를 한 때가 아니라 사임의 의사표시가 대표권자에게
669) 대법원 2001. 7. 13. 선고 2001다13020 판결.
670) 대법원 1991. 12. 27. 선고 91다4409, 4416 판결 참조.
671) 대법원 1996. 12. 10. 선고 96다37206 판결.
672) 대법원 1992. 7. 24. 선고 92다749 판결, 대법원 2008. 9. 25. 선고 2007다17109 판결：법인과
이사의 법률관계는 신뢰를 기초로 한 위임 유사의 관계이므로, 이사는 민법 제689조 제1항이 규정한 바에 따라 언제든지 사임할 수 있고, 법인의 이사를 사임하는 행위는 상대방 있는 단독행위이므로 그 의사표시가 상대방에게 도달함과 동시에 그 효력을 발생하고, 그 의사표시가 효력을 발생한 후에는 마음대로 이를 철회할 수 없음이 원칙이다.
673) 권오복, 이론실무 법인등기(상), 육법사 2001. 527면.
674) 대법원 2006. 6. 15. 선고 2004다10909 판결.
Ⅱ. 법인 아닌 사단의 임원 199 도달한 때이다.675)
사직서를 냈으면 특별한 사정없는 한 철회 못한다. 즉, 퇴사하면 수천만원에 달하는 교육비용
을 반납해야 한다는 사실을 알고 곧바로 철회했더라도 이미 사직서 제출로 사직 의사가 도달한
이상 사측의 동의 없이는 사직 의사를 철회할 수 없다.676)
그러나 법인이 정관에서 이사의 사임절차나 사임의 의사표시의 효력발생시기 등에 관하여
특별한 규정을 둔 경우에는 그에 따라야 하는바, 위와 같은 경우에는 이사의 사임의 의사표시가
법인의 대표자에게 도달하였다고 하더라도 그와 같은 사정만으로 곧바로 사임의 효력이 발생하
는 것은 아니고 정관에서 정한 바에 따라 사임의 효력이 발생하는 것이므로, 이사가 사임의
의사표시를 하였더라도 정관에 따라 사임의 효력이 발생하기 전에는 그 사임의사를 자유롭게
철회할 수 있다(민 40ⅴㆍ43ㆍ111①ㆍ689①).677) 또한 근로자가 사직원을 제출해 근로계약
관계의 합의 해지를 청약하는 경우에는 그에 대한 사용자의 승낙의사가 형성돼 승낙의 의사표시
가 근로자에게 도달하기 이전에는 의사표시를 철회할 수 있다.678)
(다) 사임은 위임계약을 장래에 대하여 소멸시킬 것을 목적으로 하는 의사표시이며 단독행위
이므로, 법인의 승낙을 필요로 하지 않고 또한 그 사임에 따른 변경등기가 없더라도 즉시 그
자격을 상실한다.679)
그러나 사임의 등기가 되기 전에는 그 사임으로서 제3자에게 대항할 수 없다(민 54). 다만,
이사는 부득이한 사유없이 법인에 있어서 불리한 시기에 계약을 해지하는 때에는 손해를 배상하
여야 한다(민 689②).
(라) 대표권 있는 이사가 사임하는 경우에는 다른 대표권 있는 이사에게 사임의 의사표시를
하면 되나, 다른 대표권 있는 이사가 없는 경우에 누구에게 사임의 의사표시를 할 것인가?
만약 다른 대표권 있는 이사가 없을 때에는 이사의 사임의 의사표시를 수령할 대리인을 선임하
고 이에 대하여 권한을 부여한 후에 의사표시를 하면 된다는 견해680)와 주식회사의 경우에
이사회에 제출하여야 하는 견해와 같이 이사회(정관에 이사회 규정이 있는 경우)에 제출하여야
한다는 견해가 있을 수 있다.
판례는 법인 아닌 사단인 종중에 관한 사건에서 대표자의 사임으로 그 권한을 대행하게 될
675) 대법원 1997. 9. 11.자 97마1474 결정.
676) 서울중앙지방법원 2018가합567254 판결(2019. 12. 9. 법률신문 4면).
677) 대법원 2008. 9. 25. 선고 2007다17109 판결.
678) 서울중앙지방법원 2018가합567254 판결(2019. 12. 9. 법률신문 4면).
679) 서울고등법원 1980. 5. 23. 선고 79나2290 판결.
680) 주석상법, 한국사법행정학회 2003. 210면.
200 제4장 법인 아닌 사단ㆍ재단의 기관과 임원
자에게 도달한 때에 사임의 효력이 발생하고, 사임의 효력이 발생한 뒤에는 이를 철회할 수
없다고 판시하고 있다.681) 그러나 법인의 경우에는 등기신청권이 법인의 대표자에게만 있어서
원칙적으로 대표자가 사임하여도 후임자가 없으면 등기할 수 없으므로(상등법 17), 등기를 위하
여는 법률 또는 정관에 정한 대표이사의 원수를 결한 경우에는 이사, 감사 기타의 이해관계인의
청구에 의하여 법원에서 선임하는 임시대표권 있는 이사에게 사임의 의사표시를 하여야 할 것으
로 생각된다.682)
민법법인의 임시대표권 있는 이사의 권한은 이사직무대행자와는 달리 상무에 한한다는 제한
을 받지 아니하고 본래의 대표권 있는 이사와 같다고 할 것이다(민 63).683) 주식회사의 일시이사
(임시이사)는 등기사항으로 법원에서 비송사건절차법 제107조에 의하여 법원의 촉탁에 의하여
등기하나(상 386②), 민법법인의 임시이사는 등기사항이 아니며, 법원의 촉탁등기규정도 비송사
건절차법에서 규정하고 있지 아니하다.
(4)해임
(가) 상법은 주식회사의 이사에 관하여 언제든지 주주총회에서 특별결의로 이사를 해임할
수 있다는 규정이 있으나(상 385①), 민법에는 비영리법인에 대한 이사의 해임에 대한 규정이
없다.
그러나 이사의 해임은 법인에 있어서 중요한 사항이므로, 정관으로 해임사유와 절차를 규정하
고 있는 것이 대부분이고, 정관으로 규정된 경우에는 그 정관에 따라 해임을 하면 되고, 정관으로
도 해임에 관한 규정이 없는 경우에 해임을 할 수 없다는 견해와 이사를 선임한 기관에서 해임을
할 수 있다는 견해가 있다.
이사와 법인과의 관계는 위임계약관계이므로, 민법의 위임관계 규정인 민법 제689조에 따라
선임기관이 위임계약의 해지인 해임을 언제라도 할 수 있다고 하여야 할 것이다. 따라서 대표자
의 해임에는 반드시 어떤 비위 등의 사유가 있을 것을 요하지도 아니한다.684)
681) 대법원 1991. 5. 10. 선고 90다10247 판결.
682) 대표이사가 1인 뿐인 주식회사에서 대표이사가 사임하는 경우에는 후임자가 선임되어 취임할 때까
지 대표이사로서의 임무를 수행하여야 하며(상 389③ㆍ386①), 대표이사가 사임하는 경우에는 그
사항을 등기하여야 하는데, 후임자가 없으면 사임등기도 할 수 없어 사임등기를 위하여도 일시대표
이사의 선임이 필요하다. 그리고 정관에서 정한 직무대행자는 등기신청인 자격이 없어 대표이사의
사임등기를 할 수 없으므로 정관에서 정한 직무대행자에게 사임의 의사표시를 하여도 등기를 할
수 없다. 권오복, 이론실무 상업등기(상), 육법사 2008. 1326면 참조. 민법법인에도 이사가 1인뿐이
어서 대표권을 1인이 행사하는 경우에도 주식회사의 대표이사와 같은 문제가 발생한다.
683) 대법원 1968. 5. 22.자 68마119 결정.
684) 서울고등법원 2009. 5. 8.자 2008라217 결정(대법원 2009. 9. 21. 2009그115호로 확정).
Ⅱ. 법인 아닌 사단의 임원 201
위임계약은 각 당사자가 언제든지 해지할 수 있고, 다만 당사자 일방이 부득이한 사유없이
상대방의 불리한 시기에 계약을 해지한 때에는 그 손해를 배상할 책임을 부담할 뿐이므로(민
689), 정관 등에서 감사의 해임사유를 정하고 있는 등 특별한 사정이 없는 한, 법인은 특별한
사유가 없더라도 언제든지 설립근거법이나 정관 등에서 정한 절차에 따라 감사를 해임할 수
있고, 다만 부득이한 사유없이 감사에게 불리한 시기에 해임한 때에는 그로 인한 손해를 배상할
책임을 부담할 뿐이다.685)
(나) 이사해임결의는 법인의 내부적 의사표시에 불과하므로, 그러한 결의 즉시 효력이 발생하
는 것이 아니라 이사에 대한 해임의 의사표시에 의하여 발생한다는 견해686)와, 해임은 기관의
지위를 박탈하는 것이고 이에 의하여 기관인 지위가 상실되는 효과로서 그 대표권한도 당연히
소멸되는 것이며 해임결의가 된 것을 고지함으로써 해임의 효과가 발생하는 것은 아니라는 견해
가 있다.687)
등기실무에서는 후임등기의 신속한 신청을 위하여 후자의 견해가 타당할 것으로 생각된다.
(다) 민법상 법인의 이사에 대한 직무집행정지가처분은 긍정하는 것이 통설ㆍ판례이다.688)689)
2001. 12. 29. 민법개정으로 이사의 직무집행을 정지하거나 직무대행자를 선임하는 가처분을
하는 경우에는 등기하도록 규정하고 있다(민 52의2).
그러나 피보전권리 내지 본안소송의 범위에 대하여 민법상 법인의 임원해임청구의 소를 가처
분의 본안소송으로 포함시킬 것인가에 관하여, 긍정설690)과 부정설691)이 있다. 임시의 지위를
정하는 가처분도 본안소송의 존재를 전제로 하고, 본안소송은 민사소송만을 의미한다.692)
비송사건을 본안으로 하는 가처분은 허용되지 아니한다.693) 판례는 기존의 법률관계의 변동ㆍ
형성의 효과를 발생함을 목적으로 하는 형성의 소는 법률에 명문의 규정이 있는 경우에 한하여
인정되는 것이고, 법률상의 근거가 없는 경우에는 허용될 수 없다고 한다.694)
685) 대법원 2015. 2. 26. 선고 2014다70368 판결.
686) 주석민법(총칙 1), 2002. 694면.
687) 일 최판 소화 41(1966). 12. 20(민집 20-10. 2160).
688) 박성수, 민법상 법인의 임원에 대한 해임청구의 소를 본안으로 하는 직무집행정지가처분, 서울지방
법원 실무논단(1998). 254면.
689) 대법원 1996. 12. 10. 선고 96다37206 판결.
690) 민법상 법인의 이사에 대한 해임청구의 소를 본안으로 하는 직무집행정지가처분을 긍정하는 설이
다. 이설은 민법에 명문의 규정이 없지만 상법 제385조 제2항의 규정을 유추적용하자는 견해이다.
691) 민법상 법인의 이사에 대한 해임청구의 소는 형성의 소로서, 법률상 근거가 없는 경우에는 허용되
지 아니한다. 민법에 이러한 소송에 관한 규정이 없다.
692) 박성수, 민법상 법인의 임원에 대한 해임청구의 소를 본안으로 하는 직무집행정지가처분, 서울지방
법원 실무논단(1998). 253면.
693) 대법원 1976. 10. 26. 선고 76다1771 판결 유추적용.
202 제4장 법인 아닌 사단ㆍ재단의 기관과 임원
또한 학교법인의 이사장에 대하여 불법행위를 이유로 해임을 청구하는 소송은 형성의 소에

민법의 적용을 받는 사단법인과 재단법인은 비영리목적으로 설립되고, 상법의 적용을 받는 주식회사, 유한회사, 유한책임회사, 합자회사, 합명회사, 합자조합은 영리목적으로 설립되나, 법인격을 취득하지 못하였으나, 최소한 사단ㆍ재단으로 실체를 갖추고 사회적으로 활동을 하는 권리능력 없는 사단(비법인 사단, 법인 아닌 사단)과 재단에 대하여는 민법에 규정하고 있지 아니하여 어떠한 법률을 적용하여야 하는가가 문제됩니다. 이러한 입법의 미비를 보완하기 위하여 통설과 판례는 법인 아닌 사단ㆍ재단에 관하여 사단법인에 관한 규정 중 법인격을 전제로 하는 것을 제외하고는 민법 중 법인에 관한 규정이 준용합니다. 필자는 2009년에 법인 아닌 사단과 재단에 관한 자료를 모아 처음으로 이 책자를 발간한 이래 2014년에는 증보판을 발간하였습니다. 증보판을 발간한 지도 벌써 약 9여년이 경과하여서 그 동안 법인 아닌 사단과 재단에 관한 판례와 자료가 많이 생성되어 이를 종합하여 재증보판 발간의 필요가 있어서, 법인 아닌 사단과 재단에 관한 현재까지의 대법원판례와 서울중앙지방법원 등 최근까지의 하급법원의 관련 판결과 결정을 참조ㆍ인용하고 상법상 회사 및 민법상 법인과 법인 아닌 사단ㆍ재단을 비교 설명하면서, 법인 아닌 사단ㆍ재단의 부동산등기에 대하여도 기존 자료에 추가 기술하였습니다. 이 자료가 필요한 분들에게 조금이나마 도움이 되었으면 하는 마음으로 이 책자를 발간하며, 자료를 많이 제공하여 주신 전 서울동부지방법원 사무국장 서용범국장님과 개정증보판의 간행을 맡아주신 동문북스 사장님과 동 직원들께 감사의 인사를 드립니다. 2024. 1. 저자