약혼해제에 관한 해석론과 입법론 ―종래 통설에 대한 비판적 고찰―

Abstract

Korean Civil Code (hereafter ‘KCC’) rules the engagement relationship in a legal system. The legitimate causes for the termination of the engagement are prescribed in the Code. The Code imposes the liability for damages on the negligent fiance in the case of the termination of engagement. In the case of disengagement, the academic theory and the courts affirm the restitution of the engagement mementos without the specifically related clause in the Code. It is a big issue whether it would be proper to rule an engagement relationship in a legal system or moral dimension. However, it is not desirable to change a legal system lasting for the 60 years radically to rule the engagement relationship in the moral dimension. The issues discussed in this paper are as follows. According to the dominant view, the duty of sexual fidelity is not imposed and the freedom to terminate engagement could be enjoyed on and by any fiance, which must coincide with the common sense. However, one of the legitimate causes for disengagement is “the adultery with another person after an engagement”, which is the Article 804 (ⅴ) KCC. The interpretation that the fiance's duty of sexual fidelity should be denied in spite of such a clause contradicts the interpretation that the duty of sexual fidelity is imposed on the spouse on the base of Article 840 (ⅰ) KCC which stipulates that the misconduct of the spouse should be a legitimate cause of divorce. Furthermore, since the legitimate causes of disengagement are prescribed in Article 804 KCC, it is questionable whether the fiance has the freedom to terminate the engagement without any legitimate cause. Therefore, it is reasonable to delete Article 804 KCC, which prescribes the legitimate causes of disengagement. There is also another question of whether disengagement is the “rescission” of Article 543 KCC which means the retrospective and prospective nullification of contract, or “termination” of Article 550 KCC which means only the prospective nullification of contract. It is not desirable to retroactively terminate an engagement that has the nature of a continuing contract, as long as there are no grounds for invalidation. It is reasonable to discipline the resolution of a committed relationship only in the future, as in the case of marriage, in the law of which Article 824 KCC regulates the effect of marriage cancellation only perspectively and the effect of divorce is naturally recognised only in the future. Another issue is the discussion of damages prescribed by Article 806 KCC. It is doubtful whether the damages would be for loss of profit expected by the performance of the engagement contract. Even if so, it is unclear what the contents of the profit would be. Another question is whether it would be possible to replace the compensation for the profit with the compensation for the cost or status expended in reasonable reliance on the performance of contract. Even on the base of affirmation of the replacement, it is a problem how much the ultimate compensation would be paid if the compensation of the reliance profit should be limited within the scope of the performance profit. It is desirable to enumerate the list of the specific items in the scope of damages, in order to resolve the questions referred to above from the point of view of the general rule of compensation law. In the case of a disengagement, there is no provision and no opposition concerning and against the restitution of engagement mementos, but there is only controversy about the legal theory for the affirmation of the restitution. It is doubtful whether the theory of gift under condition subsequent (the dominant view) would coincide with the actual intent of the fiances or not. The other theories also have problems pointed out by the dominant view. There is no argument against the restitution of the mementos but a controversy only about the theory for the restitution. Therefore it is desirable to establish a new clause for the restitution. It was examined how the German Civil Code (BGB) rules the damages and the restitution of mementos in case of disengagement. BGB takes such legislative attitude referred to above regarding the damages and the memento restitution. It would be proper if the Article 806 KCC would be revised and a new clause for the restitution of mementos would be established in a way like the direction adopted by BGB.