비영리법인 설립허가주의의 합헌성 검토 - 63 - ❙Abstract❙ A Review upon Constitutionality of the Concession System for the Establishment of Nonprofit Corporations 87) Dongjin Lee* Article 32 of the Civil Code of Korea provides that, in order to establish a nonprofit corporation, permission from the competent administrative authority must be obtained, while remaining silent on the specific requirements for such permission. This reflects an authoritarian, pre-modern conception—rooted in the 19th century or earlier-under which associations were subject to suppression and the granting of legal personality was regarded as a royal prerogative. It is therefore questionable whether such a concession system can be maintained under today’s constitutional order. This issue should be examined separately for incorporated associations and incorporated foundations. In the case of nonprofit incorporated associations, the issue concerns freedom of association. The key question is whether the freedom of association includes the right to acquire legal personality. Although this remains contested, it is reasonable today to affirm this view. Since the Civil Code of Korea has established the corporate system as a means of supporting associative activities under private law, and since this has become a general institutional framework, the constitutional freedom of association must be interpreted in light of these provisions. Accordingly, the requirement of permission by an administrative authority constitutes a prior authorization system prohibited by Article 21(2) of the Constitution of Korea. This also explains the underlying rationale of the Act on the Trade Union and the Conciliation of Labor Disputes, which allows labor unions to acquire legal personality merely through notification. By contrast, in the case of incorporated foundations, the issue pertains to the general freedom of action. While it is disputed whether a fundamental right to establish a foundation exists, such a right may be recognized in light of the * Professor, Seoul National University School of Law
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