무효행위의 전환과 사적 자치- 대법원 2011. 4. 28. 선고 2010다106702 판결 -

Abstract

The purpose of this paper is to examine the flow of precedents of the Korean supreme court on the application of Article 138 of Korean Civil Act. According to Article 138, if even an invalid juristic act would meet the validity requirements of another juristic act, the act could be converted into another juristic act, i.e., a substitute act, and its effect could be recognized. In this case, the intention of the parties to convert to such an act must be found. If such a system would be not operated within the scope of the principle of private autonomy, there could be a risk of infringing upon the parties' freedom to build their relationships on the basis of their own intention. It is the principle of private autonomy to decide whether or not to be bound by the obligations constituting the legal relationship based on the intention of the parties. An example of a typical misunderstanding related with the Article is that a contract that is invalid in accordance with Article 104 of the Civil Act due to excessive purchase price could be converted to any low-cost contract, that is an alternative contract, only if the price could be lowered to an appropriate amount. In order to avoid this misunderstanding in the application of Article 138 of the Civil Code, it should be noted that the subject of the permitted conversion in this article is not the legal effect, but the legal means that produces the same legal effect. It should be permitted based only on the actual intention of the parties at the time of the change to change the price, which is the legal effect, while leaving the legal means of sale just as it is. Such a change of price is a modification of the contract. Modifications must be agreed upon by the very parties. Nevertheless, to force the modification of the contract according to the legal principle of the conversion of invalid acts and to bind the party who has become disadvantaged by this modification to the contract of the changed content is to apply the law of invalid act wrongly and excessively infringe the principle of private autonomy. In order to point out this error in application of the article 138, this paper first organized and analyzed the precedents that the Supreme Court has applied to Article 138 of the Civil Act. Then, among those precedents, the judgment in which the court committed such error that it changed the legal effect, not the legal means and applied the article 138 to the situation was intensively reviewed. In addition, considering the fact that the contract in question could not be regulated as invalid due to specific circumstances in such a judgment, an alternative solution was presented to overcome the difficulties by applying the principle of good faith.