無權利者의 處分行爲와 相續

Abstract

When a non-rightful person, without the right to disposal, makes a contract that is related to the disposition and then he/she inherits rightful person, the relation between the seller, the non-rightful person, and the buyer can be an issue. Korean civil code doesn’t have any regulations whether the rightful person can ratify about the non-rightful act or not, and if so, how the effect would be. The previous opinion about this is that the case of non-rightful person’s disposal is similar to the ones of unauthorized agency’s disposal, so this case is tend to be solved along with the inheritance of principal of unauthorized agency. But the difference is that the unauthorized agency makes the contract under the name of principal while the non-rightful person contracts in his name. So the object of ratification has the effect from real act to the obligation act in case of unauthorized agency’s disposal, while the object of ratification has to be considered as the disposition in terms of real act when in case of non-rightful person’s disposal. From this point of view, the analogical interpretation from the case of unauthorized agency’s disposal cannot be allowed to make a decision about non-rightful person’s disposal. When the non-rightful person did the legal acts which is related to the disposition, the rightful person can ratify and have the effect from it according to the principle of private autonomy. However, when the rightful person dies and the non-rightful person inherits the rightful person’s position, the point of view of the relation can be an issue. But the non-rightful person cannot inherit the position right after the rightful person’s death, because the acts of disposal made by the non-rightful person before inheritance – registration of ownership transfer, for an instance - are invalidity. These acts cannot be valid just because the non-rightful person inherits the rightful person, to avoid the troublesomeness of procedure. Besides, since the non-rightful person is also a rightful person – because of the heritance - , rejecting the ratification in the position of the rightful person is against the principal of good faith. So if the non-rightful person only made a contract (contract of sale, for instance), he can be ratified, or refuse it to get defects liability or liability of non-performance. This is more obvious when the rightful person inherits non-rightful person. In this case, the inheritance means he/she obtains the position of rightful person and non-rightful person at the same time, if there are not any special circumstances against the principal of good faith, to have the right of choices of ratification.