權利濫用禁止와 權利者의 主觀的 要件

Abstract

Korean Civil Act §2 (2) provides “No abuse of rights shall be permitted.” It does not require the intention to prejudice other/s on its surface, but a lot of Supreme Court’s decisions delivered after the putting in operation of Korean Civil Law (enforcing date : 1 January, 1960) require it as an objective requirement to establish abuse of rights. The abolished Korean Civil Act did not have corresponding provision, but Supreme Court’s decisions delivered just around the corner of enforcing current Korean civil Act clarified the existence of two sort of abuse of rights. Those decisions concluded their attitudes after the reflection of current Korean Civil Act’s provision. The writer asserts in this article that subjective requirement (intention to prejudice other/s) and objective requirement (exercise of right contravening the basic purpose of law) are supplementary each other. In drawing this conclusion, the writer manifests the so-called requirements of “subjective requirement” or “objective requirement” not belong to legal requirement but considerable factors in establishing legal requirements. This article treats the relation between principle of trust and good faith and prohibition principle of abuse of rights to the necessary extent of drawing the writers position.