사법 정책적 관점에서의 무효행위전환 제도- 대법원 판례의 동향을 중심으로-

Abstract

The conversion of invalidation into validation was primarily on formal acts and on the acts in family laws in the past. The Supreme Court has shown the conversion of decisive intent into legal act in family law is also possible in formal act. In those days, the Court had the intent of avoiding repetition of legal procedures thus protecting their legal rights. The Court thereafter has shown that the original and the converted legal acts in the conversion of invalidation into validation do not have to be different kinds of legal acts. This is of paramount importance because in the past the conversion in the family law was all into different kinds of legal acts coincidentally. The Court was a fair modulator in judging so called 'Albakgi' cases. In those cases, both parties of contract did not want it judged invalid as the violation of the article 104 in Civil Code, so the Court preserved it as valid by the conversion of invalidation into validation. The most recent cases of the conversion showed the role of protecting the weak in special act. So the special act achieved the goal of protecting the social and economic weak. In the meanwhile, the Court modulated as the sacrifice of the other party not to happen. Some of the cases of the conversion in family law were integrated in law, though everything cannot be enacted, thus creativeness in judging is required. The cases dealing with the violation of the article 104 should be estimated high as the judicial judgement was effectively applied. On the conditions that the purpose of the legal act and the intent of the both parties were met, the existent legal act should sustain and unnecessary repetition be avoided. This role was performed well so far by the conversion of invalidation into validation. The area of the application of the conversion not explored yet should be vast and some of it could be enacted someday. Until that, the role of court as a prudent and progressive modulator is anticipated.