일본민법학의 계수가 부당한 경우 및 그 시정방안

• 영문명: Critical Analyses of the Adoption of Japanese Legal Theories
• 발행기관: 한국재산법학회
• 저자명: 姜台星(Kang Tae-Seong)
• 간행물 정보: 『재산법연구』財産法硏究 第23卷 第2號, 1~35쪽, 전체 35쪽
• 주제분류: 법학 > 법학
• 파일형태: PDF
• 발행일자: 2006.10.01

영문 초록

  Ⅰ. Unreasonable Cases And Correction-Proposals on a Person
  1. Why is the other party to an act perfomed by a person under disability protected?
  In a Japanese leading civil law, the reason is that the other party is not a person who has been guilty of fraud or duress. A Korean leading civil law adopt this Japanese leading civil law.
  In my view, the reason is that voidance by a person under disability can be set up against a third person acting in good faith.
  2. Does Korea Civil Act Article 29 Clause 2 provide a exception?
  Korean civil laws are affirmative without a ground.
  I am negative, because this Clause has the same contents that Civil Act Article 748 has.
  Ⅱ. Unreasonable Cases And Correction-Proposals on a Juristic Person
  1. Is the power of representation of directors restricted by resolution of general meeting.
  As Japanese civil laws are affirmative, Korean leading civil laws are affirmative.
  But, I am negative, because Korea Civil Act Article 41 and Article 60.
  2. Can"t a restriction placed on the power of representation of any director be set up a only third person acting in good faith, unless such restriction is registered?
  Japanese civil laws are affirmative, Korean leading civil laws are affirmative.
  I am negative, because Korea Civil Act Article 49 Clause 2 and Article 60.
  Ⅲ. Unreasonable Cases And Correction-Proposals on a Juristic Act
  1. The problems on Korea Civil Act Article 103
  In Japanese civil laws, the purpose of juristic act is adequate expression, because that Japan Civil Act Article 90 has the same expression.
  In Korean civil laws, in my view, the content of juristic act is adequate expression, because that Korea Civil Act Article 103 has the same expression.
  2. Where should unfair juristic act be commented?
  Korea Civil Act Article 104 is compulsory provision. Therefore, in my view, unfair juristic act should be commented in that content of juristic-act should not be against compulsory provisions.
  3. What does defective 「declaration of intention」 mean?
  In Japanese civil law, defective declaration of intention means declaration of intention by froud or duress.
  In Korean civil law, it has the same meaning that these Japanese civil laws has.
  In my view, defective declaration of intention involves not only declaration of intention by froud or duress, merely also defective declaration of intention under mistake.
  Ⅳ. Unreasonable Cases And Correction-Proposals on the Transer of Real Right
  In Japan Civil Act, the transer of real right by the juristic act takes effect without its registration or by delivery. But, In Korea Civil Act, the transer of real right by the juristic act takes effect on its registration or by delivery.
  Without reflecting on this difference, Korean civil laws adopt Japanese civil laws in many cases. Therefore, these Korean civil laws are unreasonable.
  In this thesis, I propose the views that correct these unreasonable civil laws.

목차

Ⅰ. 머리말
Ⅱ. 자연인에 있어서 부당한 경우 및 그 시정방안
Ⅲ. 법인에 있어서 부당한 경우 및 그 시정방안
Ⅳ. 법률행위에 있어서 부당한 경우 및 그 시정방향
Ⅴ. 물권변동과 관련하여 부당한 경우 및 그 시정방향
Ⅵ. 맺음말
참고 문헌
〈Abstract〉

키워드

행위무능력 민법 제29조 제2항 민법 제59조 민법 제60조 민법 제103조 민법 제104조 하자 있는 의사표시 민법 제106조 취득시효 유저당계약 person under disability Civil Act Article 29 Clause 2 Civil Act Article 59 Civil Act Article 60 Civil Act Article 103 Civil Act Article 104 defective declaration of intention Civil Act Article 186 acquiring ownership by possession Mortgage -Elimination Contract