민법학의 학설에 대한 적정성 평가 - 민법 제정과정에 유의하며 제1조⋅제6조⋅제10조 관련 학설을 대상으로 -

Abstract

For the further development of Korean civil law, it is necessary to reconsider and reflect upon the past, as a means of providing the road map for the future. From such a viewpoint, this paper focuses on legal doctrines in civil law. Theoretical debate serves as a stimulus for academic development. However there seem to be legal doctrines that are of little avail. Inappropriate doctrines not only lack academic value but may even be significant obstacles. Therefore there needs to be a thorough reassessment of existing legal doctrines from an appropriateness point of view. The assessment of a doctrine's appropriateness can be conducted in a variety of ways. However this paper will choose one which concentrates on legislative process. A number of topics will be subject to the appropriateness test, which will suggest two things. First, despite the determination of the drafters of the Korean civil law to settle the theoretical disputes of the borrowed Civil law era, some of these disputes are still ongoing. An examination of the travaux préparatoires reveals that the determination then made was the result of a great deal of deliberation. Neglecting this is difficult to accept. If such an attitude is the outcome of relying solely on Japanese legal literature, without considering our lawmaking process, this would be a major mistake. Second, some theoretical disputes arise from and are based solely on legislative error. For example, this paper considers one theoretical dispute which develops ideas based on the presumption of Article 10 of the Korean Civil law, that the legal capacity of persons of quasi-incompetency is recognized as equal to that of minors. Applying article 8 to persons of quasi-incompetency is not only uncommon in other legal systems but the legislation itself is unseemly. Article 8 which recognizes the legal capacity of minors in certain businesses was designed to regulate keen minors. Therefore applying the above article to persons of quasi-incompentency goes against the very purpose of recognizing persons of quasi-incompentency. This paper, by necessity, chose to put greater weight on the determination of the drafters. The determination of the drafters can by no means be perceived as being absolute. Nevertheless there is no denying that the legislative process and the determination of the drafters played a significant role. This is because they are a part of the history of our Civil law. Neglecting history would only result in losing one valuable stimulus to the independent development of our Civil law.