商法上의 立法錯誤의 是正을 위한 연구(1) - 商法總則ㆍ商行爲編을 중심으로 -

• 영문명: A Suggestion for Removing the Legislative Errata from the Commercial Act
• 발행기관: 한국사법학회(구 한국비교사법학회)
• 저자명: 이철송(Chul-Song Lee)
• 간행물 정보: 『비교사법』비교사법 제12권 4호, 1~25쪽, 전체 25쪽
• 주제분류: 법학 > 법학
• 파일형태: PDF
• 발행일자: 2005.12.01

영문 초록

Korea’s limited experiencein the legislative process in the early days of the country led to quite a few legislative errors in modern laws in Korea. Particularly, the author discusses the technical errors in the Commercial Act and analyzes the backgrounds of these errors. The errors can be classified into three categories. First, since the legisla tion was implemented in a hurried manner, sometimes the legislators were given only a couple of years for codification, which inevitably invited carelessness and mistakes in the codification process as a whole. Second, the legislators were not sufficiently informed of the background of a particular legislation or the whole structure of the foreign laws which provided a model for the proposed legislation (it should be noted that the Korean private laws stem from the civil law system). Third, the legislators failed to remove the conflict between the individual provisions of the Commercial Act and the relevant general rules contained in the Civil Act. Among these, the author pays particular attention to the third category. In 1958, the new Civil Act took place of the old Civil Act which was enforced during the Japanese colonial rule and ensuing years after Korea’s independence in 1945. On the other hand, the enactment of the new Commercial Act was completed in 1962 to take place of the old Commercial Act. One could imagine that the commercial law, as a special private law, would have been based on the general principles of the civil law. However, that was not necessarily the case. The legislators of the Commercial Act of 1962, not being fully aware of the changes in the civil law rules in 1958, failed to fully harmonize the Commercial Act with the new rules of the new Civil Act. Several provisions of the Commercial Act, therefore, came to be left not compatible with the civil law rules. In addition, there were several cases where even the newly established basic principles of the new Commercial Act were not adequately reflected on the individual provisions of the Act. The author illustrates technical errors that fall in this category. As atypical example, the author criticizes that the legislators failed to amend the Section 52 of the Commercial Act dealing with the conclusion of a commercial contract, which can be justified as a special treatment for the commercial transaction only under the general rule of the con tract in the old Civil Act, although the latter was basically changed. After analyzing the erroneous provisions of the Commercial Act, the author then ar gues for the amendment of the Commercial Act to harmonize the provisions of the Commercial Act with the general rules of the Civil Act.

목차

Ⅰ. 머리말

Ⅱ. 立法錯誤의 原因

Ⅲ. 商法중의 立法錯誤 및 解釋的 誤謬의 예

Ⅳ. 맺는 말

[참고문헌]

【ABSTRACT】