民法上 善良한 風俗에 反하는 行爲의 分類論

Abstract

Korean civil article 103, regulates that 'A juristic act, which has for its object such matters, are contrary to good morals and other social order shall be null and void.' This essay depicts about the legal theory on good morals by analyze the cases. The Korean civil article 103 is somewhat similar to German civil article 138. As I mentioned at the beginning, the Korean civil article 103 states the framework for good morals and violation of social order, which is different from the Article 104 which regulates the unfair juristic act; however, regardless of the formalistic approach that resembles German civil article, the essential material still follows the Japanese old civil article. In other words, Korean civil articles should have regulated differently by ignoring the unfair juristic act, so that the similarity to German civil article is overlooked and the proximity to Japanese civil article is over-emphasized. The meaning of 'good morals' refers to the minimum ethic code that all the citizens must follow, and the meaning of 'Social order' refers to the public order or general benefits; however, the proper terms of good morals embraces the both concepts. The theory of the breaches of good morals should be separated based on the judicial decision of the supreme court. As the result of analysis of the all the cases from 1960s, the good morals can be divided into 7 categories, such as act contrary to the ethics of gender, act contrary to the family, act contrary to the social ethics, act contrary to the life ethics, act contrary to the economic ethics, act contrary to the ethics of occupation, and act contrary to the communal ethics. In conclusion, the main essence of Korean civil article 103 should be the concepts of good morals. For the legislator's perspective point of view, the social order should be rescinded and Article 103 also regulated only the violation of good morals' area.