한국법과 독일법상의 법률행위 개념비교

Abstract

Korean civil law inherited the German civil law system. Therefore, not only the constitutional system but also many legal institutions (Rechtsinstitutionen) are very similar, only differing in some institutions or structures. Among them, important differences emerge in the legal practice system. In civil law, the legal act system plays a central role as a key tool to realize the ideology of private autonomy. However, under the German civil law system, a system called legal transaction (Rechtsgeschäft) is used and it can be seen that it has been transformed into a legal act (Rechtsakt) in Korean civil law. Therefore, the abstract complex definition and legal essence of legal transaction in German law became different from the concept of legal act in Korean civil law. As shown in its terminological concept, legal transaction is a comprehensive abstract concept centered on the completion of a transaction in which the effect of a transaction occurs. In other words, it is a combination of one or several acts in which one legal effect occurs. This can be said to represent the legal essence from the point of view of the occurrence of legal effects. On the other hand, it can be seen that the legal act in the Korean civil law is an action-oriented concept in which one act is completed when one legal effect occurs as a logical system approached from the viewpoint of individual acts. According to the concept of legal transaction at the conceptual level of these legal terms, the expression of intention of offer and acceptance is only a part of the contract, and there is no need for a clear statement on whether each act is a legal act or not. In the case of Korean civil law, which uses the concept of a legal act, the act must be classified according to the definition of the legal act. Therefore, it can be said that the expression of intent of offer and acceptance represents the legal essence as a legal act, respectively. The legal act system, as in the Korean civil law, regards each act that has a legal effect as one legal act, so it can be said to have secured systematic completeness by securing objective clarity than the concept of legal transaction. In addition, unlike the systematic methodology of German civil Law, which treats a property change contract (Einigung), an agreement at the time of registration or transfer of possession (Einigsein), etc. as a single property act (Dingliche Rechtsgeschäft), Korean civil Law treats the agreement at the time of transfer of possession should be treated as a single legal act. As such, it can be seen that the legal system and its concept of Korean civil law were differently transformed in the process of counting German civil law. However, in terms of clarity and systematicity, the legal act is superior to the concept of the German legal transaction