An Examination on the Doctrine of Negotiorum Gestio- focusing on limiting the doctrine to its proper scope -
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The provisions of the Korean Civil Code on negotiorum gestio are inherently vague by legislating morality. Considering the development of doctrinal orderly synthesis to be one of major tasks of Korean civil law system, it is not desirable to extend the scope of application of this inherently vague doctrine. The doctrine of negotiorum gestio, based on altruism, should apply only in those few cases where the principal is unable to act on his own behalf. In this regard, it is open to question for some doctrinal writers and courts in Korea to attempt to extend the doctrine in recent. For the underlying idea of the Korean Civil Code is to encourage people to manage their own affairs for themselves rather than to encourage people to assist others in need. Also, today, in Korea, the cases in which an owner will be absent for the purpose of negotiorum gestio are rare due to the technological progress in the areas of communications and transportation. Rather, I'd legislatively propose the obligation to notice to the owner prior to undertaking the management in the sense that a potential manager must first attempt to obtain an express or, at least, tacit mandate from the owner. Also, to prevent the distortion of the doctrine of negotiorum gestio, the Korean courts need to draw a distinction between the types of unjust enrichment interpretatively.
Abstract
The provisions of the Korean Civil Code on negotiorum gestio are inherently vague by legislating morality. Considering the development of doctrinal orderly synthesis to be one of major tasks of Korean civil law system, it is not desirable to extend the scope of application of this inherently vague doctrine. The doctrine of negotiorum gestio, based on altruism, should apply only in those few cases where the principal is unable to act on his own behalf. In this regard, it is open to question for some doctrinal writers and courts in Korea to attempt to extend the doctrine in recent. For the underlying idea of the Korean Civil Code is to encourage people to manage their own affairs for themselves rather than to encourage people to assist others in need. Also, today, in Korea, the cases in which an owner will be absent for the purpose of negotiorum gestio are rare due to the technological progress in the areas of communications and transportation. Rather, I'd legislatively propose the obligation to notice to the owner prior to undertaking the management in the sense that a potential manager must first attempt to obtain an express or, at least, tacit mandate from the owner. Also, to prevent the distortion of the doctrine of negotiorum gestio, the Korean courts need to draw a distinction between the types of unjust enrichment interpretatively.
참고문헌 (19)
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