일본법에서의 법률행위 무효론 - 무효규정의 입법 취지와 우리민법과의 차이점을 중심으로 -

Abstract

The Japanese Civil Code has many individual articles indicating what type of legal act will be invalid. It has also general provision about invalidity as the Korean Civil Code. This legislation was derived from the German Civil Code. Unlike the German Civil Code, however, the Japanese Civil Code provides only one expressive rule about ratification. Other legal rules but the ratification rule remain on courts or legal scholars’ interpretation. Indeed, Japanese current rules have been shaped by their interpretations thereafter. The Korean Civil Code mainly referred to the Japanese Civil Code during its enactment. Nevertheless, there are some subtle differences between the Korean and Japanese Civil Code: invalidity as legal effect of mistake, partial invalidation, conversion of invalidation into validation and so on. These differences allow us to infer that the enactment aimed to solve the problems that the Japanese Civil Code had at that time. This article investigates the legislative purpose of invalidity rules in Japanese Civil Code, and it also attempts to the comparative analysis between the current Korean Civil Code and the Japanese. The comparative analysis should not be limited to the previous version of Japanese legal theories. In fact, Japanese traditional perspectives on invalidity (in the case of violating public policy) has been evaluated as problematic. In response, there are new emerging perspectives on invalidity, which provides implications for polishing the Korean Civil Code.