통일 민법에 있어서 북한 자연인의 능력 규정의 수용 및 그 한계

Abstract

This paper examines the legal capacity, person with limited capacity, intention capacity, and competence of natural persons in the current north korean civil law, and clarifies the acceptance and limitations of the capacity provisions of natural persons in the north korean civil law in the unified civil law, and suggests transitional provisions that should be included in the unified civil law. Regarding the scope of legal capacity of a natural person, the north Korean civil law (§25, §133조-§140, §391) denies private property rights to land, buildings, etc. and prohibits loans for consumption bearing interest. These provisions cannot be accepted in the unified civil law. The north korea's civil law does not provide for the status of an unborn child, wills, and an unborn child in terms of claims for damages. Therefore, transitional provisions should be established to apply the relevant provisions of our civil law (§762, §1064) to the north korean region after unification. Regarding the capacity of a natural person to act, the north korean civil law (§27) sets the age of majority at 18, which is too low, so article 4 of our civil law (§4) in the unified civil law should be applied to the north korean region as well. In addition, transitional provisions for the reaching majority should be made for north koreans who have already reached the age of 18. The north korean civil law (§28 ②) is similar to the provisions of our civil law (§10 ④, §13 ④) regarding limited wards and adult wards for minors aged 7 or older. Therefore, the unified civil law should newly add a proviso to Article 5 Paragraph 2 of our civil law (§2 ②) that provides, “Provided, that the same shall not apply to any juristic act necessary for everyday life and the price for which is not excessive, such as the purchase of daily necessities.” The north korean civil law (§30) does not have any provisions on ‘persons with physical disabilities’, so the unified civil law should include a transitional provision regarding adult wards under our civil law (§9, §12). With regard to the intention capacity of a natural person, it is necessary to include explicit provisions in the unified civil law that treat as invalid the legal acts of a person without intention capacity. Regarding the competence of a natural person, the provisions of the north korean civil law (§557, §558) that reflect a political character and base their actions on their capacity to act should be abolished. In addition, transitional provisions should be included in the unified civil law to apply the provisions of the korean civil law (§753-§755) on competence to the north korean region.