Based on a comparison with German law, it is possible to think that, although a partnership cannot have completely comprehensive legal capacity like a corporation, it may have certain legal capacity under certain conditions, or that a method of interpreting the law through law-making that goes beyond the statute can be considered; but there has not yet been any concrete work on what changes this should bring to the amendment, application and interpretation of our Civil Act. Nevertheless, awareness of the problems and limits of partnerships under the existing Civil Act and Civil Procedure Act is expanding day by day.

Where property is obtained through the partnership's business but acquired in the name of a partner or managing partner, it is considered that there is a duty to transfer that right into the partnership's name. Before that right is transferred, the right held by the partnership and the other partners may be no more than a claim for transfer; but in the case of property obtained through an act carried out on the partnership's account, with the transfer made while indicating that the property is for the partnership, it is considered that the partnership and all of its partners should in fact be regarded as the owners of that property even if no act of transferring the right into the partnership's name exists. This means that, before the contributions to the partnership and the act of transferring partnership property take place, the partners still hold the rights to that partnership property, and the partnership holds only a claim as an obligatory right.

Whether a partnership can be legally recognized as having capacity to be a party under the Civil Procedure Act is, in the end, closely related to how the nature of a partnership is classified. On this point, following the Civil Act system that completely separates partnerships from associations, the Civil Procedure Act has a separate provision recognizing the litigation capacity of unincorporated associations but no provision recognizing litigation capacity for partnerships, thereby excluding partnerships by the wording of the statute. (Go Ju-hyeon, 2019, A Study on the Operation and Improvement of the Claim Execution System under the Civil Execution Act: Focusing on the Collection Order System)

However, this approach of the Civil Procedure Act causes much inconvenience in civil litigation when one considers the forms of partnership that actually exist. A partnership must always make all of its partners plaintiffs or defendants, and litigating this way imposes procedural burdens on both the partnership and its opponent. When the partnership's opponent wants to file suit, it must investigate who all the partners are, which may lead to unfavorable litigation results due to the passage of time.

The case law is also aware of the problems of denying a partnership capacity to be a party under procedural law. It recognizes the problems of allowing only compulsory joint litigation even where, by the partnership agreement and resolutions, the managing partner has in practice been given authority to manage partnership property and the right to represent the partnership and carry out external business, and it exceptionally allows voluntary litigation trusts; so the managing partner of a partnership can be regarded as having been given authority similar or identical to that of an unincorporated association.

Rather than denying partnerships capacity to be a party under procedural law in principle and exceptionally applying voluntary litigation trusts, it is more reasonable to recognize a partnership's capacity to be a party in a limited way.

The changes in German law the material mentions later led to legislation: the German Act to Modernize the Law on Partnerships (MoPeG), in force since January 2024, expressly recognizes legal capacity for civil-law partnerships that act externally. Our case law still regards litigation over partnership property as inherently compulsory joint litigation in which all partners must be parties, while exceptionally allowing a managing partner's voluntary litigation trust. Adding a comparison of this difference lets you write a much more persuasive conclusion for assignments covering both the Civil Act and the Civil Procedure Act.