통정허위표시와 자연적 해석, 그리고 계약당사자 확정 법리 - 차명대출 사안에 대한 검토를 중심으로 -

Abstract

In the case of a borrowed-name loan with the understanding of a financial institution, the Supreme Court regards the loan contract between the name lender and the financial institution as invalid in the form of a fictitious declaration of intention in collusion, yet saying the parties to the loan contract are the name borrower and the financial institution, not the name lender and the financial institution. Theoretically, in the case of borrowed-name loans such as this, there are two different views – the view of regarding it as an issue of the fictitious declaration of intention in collusion and the view of regarding it as an issue of determining the parties to the contract according to a natural interpretation method. However, these two approaches are incompatible, and stand as contradictory. The approach that regards this as an issue of determining the parties to the contract being based on the premise that there is only a single loan contract, there is no room for any problem with the fictitious declaration of intention in collusion. Meanwhile, the approach to view this as a problem of the fictitious declaration of intention in collusion is to understand that the juristic act of disguising and the concealed juristic act exist, respectively, so there exists no problem with determining the parties to the contract by natural interpretation. When the parties agree to make a juristic act different from what is indicated, an agreement to nullify the juristic act as indicated within the written word and an agreement to make another juristic act exist at the same time. In this case, there are plural juristic acts, not one single juristic act. The borrowed-name loan case falls under this type of fictitious declaration of intention in collusion. In light of this structure and Article 108 (1) of the Civil Code, natural interpretation does not stand as an issue here. The legal stance of the Supreme Court which examines both the fictitious declaration of intention in collusion and the theory of determining the parties to the contract by natural interpretation in the case of borrowed-name loans is not only legally inappropriate, but also contradictory in itself. When there is an understanding of a financial institution when signing a borrowed-name loan contract, it may only be discussed as to ‘whether there is a separate, true loan contract’ other than the external, false contract, not ‘who are the parties to the contract’.