법률행위가 민법 제103조에 의하여 무효인 경우에 있어서의 급여자의반환청구 여부

Abstract

The subject of this study is about connection between Civil Article 103 and Civil Article 746. Ⅰ. The Common Views and Judical Precedents in Korea Civil Act Article 103 and Civi Act Article 746 are the regulations of same intent. That is to say, both articles are equivalent in that they don't protect any particular one. Ⅱ. My View These Common Views and Judical Precedents grasp the meanings of Civil Act Article 103 and 746 unreasonably. Therefore, I assert a principle and exception as follows. 1. Principle The intent of Civil Act Article 103 is to make a condition that there is no Juristic Act against social order. Therefore, a performer can claim the Return since the Juristic Act is invalid by Civil Act Article 103. 2. Exception Sometimes, These Returns make unfairness between the parties concerned. In these case, Civil Act Article 746 is regulation which does not admit these Returns. 3. Abstract. Civil Act Article 746 is exceptional regulation of Civil Act Article 103. That is to say, Civil Act Article 103 is the regulation which admits performer's claim of the Return. On the other hand, Civil Act Article 746 is the regulation which does not admit performer's claim of Return in exceptional cases. Ⅲ. Specific examples about claim of the Return In these point of views, I solve following specific examples. Namely. Gambling-Contract, the Second Sale on a Thing, Unfair Juristic Act, Name-Trust Contract on the Real Thing, Settlement of Mortgage, Settlement of Transferable Security, Prostitution-Contract, Concubinary Contract, etc. Ⅳ. Connection with Civil Act Article 103 Civil Act Article 742 prescribes Discharge without Obligation. I discourse upon connection between Civil Act Article 742 and Article 103, Civil Act Article 742 and Article 746.