표현대리를 둘러싼 몇 가지 학설에 대한 적정성 평가 - 표현대리와 민법 제35조, 제135조, 제827조의 상호관계에 관하여

Abstract

Theories are a natural scientific phenomenon which play an important role in legal policy, legal interpretation and other areas of jurisprudence. Various viewpoints in a theoretical debate can serve as a stimulus in the advancement of science. However there are certain debates which are doubtful in terms of their appropriateness. Such debates are not unknown in civil jurisprudence. The lack of appropriateness is due to differing reasons: debates that lack both theoretical and practical utility; debates that are flawed in their presumptions; debates that do not hold for Korean civil law due to its specificities; debates that were relevant for Old Civil Law but not for New Civil Law and etc. Korea should be able to contribute to world legal culture in a way commensurate with its international status and prestige. For such purposes we need to reflect on our past as a means of setting the proper course for the future. Assessing the appro- priateness of theoretical debates can free our jurisprudence from inefficiency thereby laying the foundation for a fresh start. From such a viewpoint, the present paper examines three theoretical debates concerning apparent authority. First, the relationship between apparent authority and unauthorized agency(Korean Civil Law article 135 paragraph 1)(II). Second, the relationship between apparent authority(especially article 126) and corporate tort liability(article 35 paragraph 1)(III). Third, the relationship between apparent authority(especially article 126) and the right of representation on ordinary family affairs(article 827)(IV). The first debate is flawed in its presumption. The second debate is not only based on illogical reasoning and a confusion of concepts but also rests on unrealistic assumptions. Moreover the above two debates do not account for the oral proceeding system, thereby placing the efficacy of the debates under doubt. The third debate neglects our legal system's philosophy and structure which in turn leads to a rather awkward application of the theory of apparent authority in practice.