메이지 민법에서의 행위능력 제도의 규정 취지

Abstract

The Korean Civil Code adopts various concepts related to a person’s capacity, including legal capacity, mental capacity, capacity to act, liability capacity, and testamentary capacity. Among these, the provisions concerning capacity to act, specifically the rules for persons of limited capacity, play a protective role for vulnerable members of society. However, the legal structure for capacity to act is unique, as it is a fundamental requirement in legal acts and thus should be regulated under the section concerning legal acts. Nevertheless, unlike other capacities, capacity to act is defined separately under the chapter on ‘Persons’. This distinct regulation is purportedly to protect those with incomplete mental capacity, as proving mental incapacity is challenging. Nevertheless, in the Meiji Civil Code, which heavily influenced the Korean Civil Code, physical disabilities were grounds for placing individuals under limited guardianship (quasi-incompetence) and even designated wives as lacking legal capacity, regardless of mental capacity. This raises doubts about whether the purpose of the limited capacity system was truly to protect individuals with decision-making disabilities. Thus, this study analyzes from a legislative history perspective why the Meiji Civil Code established capacity to act as a separate category. The Meiji Civil Code used the term "incapacity" to simplify terminology regarding limited capacity to act. This approach indicates that from the outset, capacity to act was intended to be "limited" rather than "absent," as current Korean law specifies. Additionally, the rules on limited capacity appear to have stemmed from policy considerations, such as granting decision-making authority to husbands in the marital property system. There is reason to question whether this system was indeed designed for the benefit of minors or persons with disabilities or, rather, for the convenience of family members who sought to exercise control over them. From a legislative perspective, it seems widely accepted today to establish provisions for mental incapacity. However, caution is advised to avoid misinterpretation and ensure that any provisions regarding mental incapacity are thoughtfully and accurately legislated.