민법에서의 철회에 대한 검토 및 개정방향

Abstract

The Korean Civil Act provides on the withdraw in the many articles and clauses. In this paper, I reviewed everything about the withdraw comprehensively. And based on this review, I suggested right amendment proposals. 1. Concept and Object of Withdraw After studying the theory on the concept of withdraw, I accept special cancel and special withdraw besides original cancel and original withdraw. Especially, I argue that the withdraw of the Korean Civil Act Article 16 is not withdraw but a special cancel in quality. I argue the object of the withdraw is not juristic act but declaration. 2. Withdraws Provided in Chapter Ⅰ of the Korean Civil Act ① In the Legislation that a juristic act of person under disability can be canceled, the withdraw of other party to person under disability is a special cancel in quality. So, I suggest that this withdraw should be amend into cancel. ② The withdraw of authority-delegation is not uniformly in quality. ③ The withdraw of other party in the Korean Civil Act Article 16 is a special cancel in quality. So, I suggest that this withdraw should be amend into cancel. ④ The cancel in the Korean Civil Act Article 8 and 7 is not withdraw but cancel in quality. So, this don’t need to amend. 3. Withdraws Provided in Chapter Ⅲ of the Korean Civil Act ① The withdraw of option in alternative claim is a special cancel in quality. So, I suggest that this withdraw should be amend into cancel. ② The withdraw of notice of claim-assignment is a withdraw in quality. So, this do not need to amend. ③ The withdraw of obligation-assumption is neither a withdraw nor a cancel in quality. So, The Korean Civil Act Article 456 should be amended. ④ The withdraw of contract-offer is a withdraw in quality. So, this don’t need to amend. But the title of the Article 456 should be amended. ⑤ The withdraw of termination or rescission is a special cancel in quality. So, I suggest that this withdraw should be amend into cancel. ⑥ The withdraw of advertisement for prize contest is a original withdraw in quality. So, this don’t need to amend. ⑦ The withdraws in the Korean Civil Act Article 555조∼제558 are special cancels in quality. Therefore I suggest that these withdraws should be amend into cancel. 4. Withdraws Provided in Chapter Ⅴ of the Korean Civil Act ① The withdraw of declaration in the guardianship-contract is a original withdraw in quality. So, this do not need to amend. ② The cancel of acceptance or renunciation is not a withdraw but a special cancel. So, this do not need to amend. 5. The Other Problem and Amendment Proposal The person under disability or the person who has made declaration under mistake or by fraud or duress can cancel his declaration. And then I suggest amendment proposals that the other party of this person should be able to cancel his declaration.