무권대리와 상속

• 영문명: Unauthorized Agency and Inheritance
• 발행기관: 한국사법학회(구 한국비교사법학회)
• 저자명: 고영아(Young-Ah Goh)
• 간행물 정보: 『비교사법』比較私法 제15권 제1호, 133~163쪽, 전체 31쪽
• 주제분류: 법학 > 법학
• 파일형태: PDF
• 발행일자: 2008.03.30

영문 초록

  In case of an unauthorized agency, a principal may accept or reject its legal effect by electing ratification. If a principal rejects ratification, an unauthorized agent shall indemnify and hold harmless a bona-fide third party against all damage or perform an obligation by his selection. However, in the event that an unauthorized agent inherits the status of a principal due to the death of the principal after unauthorized act has occurred and vice versa, the status as both a principal and an unauthorized agent will belong to the same person. In addition, it may occur that a third party will inherit the status of both a principal and an unauthorized agent concurrently or consecutively. In such cases, one problem is that whether such unauthorized agency will be deemed to be legally effective as a matter of course or the status of a principal and an unauthorized agent will coexist. Furthermore, the other problem is that whether there is any difference between exclusive inheritance and joint inheritance in such case.
  Under the theory of validity as a matter of course, in the event that an unauthorized agent will succeed to the status of a principal by inheritance, such unauthorized act will be deemed as validity as a matter of course. The theoretical bases of the theory of validity as a matter of course are as follows: First, this theory maintains that the act of an unauthorized agent will be originally identical with that of an authorized agent so far as he or she will take all responsibilities under section 135 of the civil code. Second, it maintains that the status as a principal and the status as an unauthorized agent will be mixed and merged. Third, it maintains that the principal’s rejection of ratification is against the principle of good faith. On the other side, the weak points of the theory of theory of validity as a matter of course are as follows: The first problem is that even though an unauthorized agent may not take the responsibility in certain cases, he will be unreasonably liable for his acts because of the fact that he has inherited the status of a principal in such cases. The second problem is that since unauthorized agency is a kind of uncertain and unstable act and thus the right to ratify such act will belong to a principal as well as a third party, it is unreasonable that an unauthorized agent loses such right or interest for the fact of his inheritance of the principal’s status. The third problem is that if such unauthorized act is deemed as being valid as a matter of course, the right or interest of joint successor will be infringed because he may not exercise the right to reject ratification.
  The theory of qualification coexistence maintains that an unauthorized agent’s act may not be deem as being valid or invalid as a matter of course and yet an unauthorized agent is prohibited from rejecting ratification under the principle of good faith even though he is assigned the right to ratify or reject such act from a principal. However, even if the coexistence of both qualifications is accepted, a third party may elect to hold an unauthorized agent liable and demand for his performance under section 135 of the civil code in the event that an unauthorized agent or a principal may reject to ratify such unauthorized act. In such case, the difficult point is that an unauthorized agent will be under the same legal effect with the case as if he is a principal because he shall discharge his obligations and a third party will benefit such performance of obligations.
  Approaching the matter of an unauthorized agency and inheritance as the matter of how this conflict of legal effect will be resolved and given a priority, the conflict of legal effect will be deemed as the conflict of relationship between right and obligation. If a person who inherits the status of an unauthorized agent is not required to perform any liability, this is a problem of how

목차

Ⅰ. 머리말
Ⅱ. 우리나라의 판례 및 학설
Ⅲ. 일본의 판례 및 학설
Ⅳ. 무권대리와 상속의 법적구성에 관한 고찰
Ⅴ. 맺음말
【참고문헌】
[Abstract]

키워드

무권대리 상속 추인 신의칙 관리권 Unauthorized Agency Inheritance Ratification the Principle of Good Faith Right of Management