法律行爲 要件體系의 批判的 分析과 再定立-효과귀속요건으로서 대리권의 존재와 관련하여-

Abstract

About the condition of contract, the most of korean civil law scholars divide it into two groups, the condition of conclusion and the condition of effect, and then, divide each condition into general condition and special condition. They also think that each group of condition includes various and concrete elements of contract. For example, the general condition of conclusion includes the existence of parties, expression of will and purpose of contract, the special condition of conclusion includes the registration of property or notification of marriage etc., the general condition of effect includes the capacity of parties, confirmation of expression, possibility, lawfulness and social propriety of purpose, and the special condition of effect includes the permission on trade of real estate in particular area or the achievement of suspended condition etc. But this thought disorder the system of contractual condition in korean civil law, because the most of views differently divide the group of condition and classify various elements of contract at their own pleasure. And in a certain sense, these division and classification are incorrect from the different standpoint. Because it cannot be admitted that a contract is concluded but ineffective in view of the nature of contract. I think the condition of conclusion and the condition of effect cannot be divided in the light of nature of contract, and I also think it is enough that there are two kinds of condition for the conclusion of effective contract. The one is the general condition, that is to say, the capacity of parties, correspondence of expression, confirmative, possible, lawful and socially proper purposes. The other one is the special condition, that is to say, acquisition of permission, achievement of suspended condition, etc. Therefore, in relation to the effect of permission on trade of real estate in particular area, I suggest that all contracts are effective when the general condition is fulfilled, and the legal duty of cooperation for getting the permission ought to be recognized from the provisional validity of contract. And also suggest, the contract carries it into effect definitely when the special condition is fulfilled, and therefore the obligations of contractant, such as payment and registration, are actualized by the acquisition of permission. And especially, in area of agency, I think also that the representative authority of agent is the condition which reverts into the principal the effect of contract formed between agent and other party. Therefore, about the contract between unauthorized agent and the other party, it is effective because the general condition is fulfilled, although effect of contract between them cannot be reverted into the principal for the absence of agent’s representative authority. Of course, the Article 135 of the Korean Civil Code prescribes in the 1st Sentence that if a person who has made a contract as an agent of another can neither prove his authority nor get the principal to ratify the contract, he shall be liable to the other party, at the latter’s option, either for the performance of the contract or for the compensation to damages. The most of korean civil law scholars and judicial precedents have interpreted that the Article based on the view as fallow. When the agent has the representative authority, the effect of representation has a binding power to the principal. But, although the agent has not the representative authority, he must also liable to the other party with the same extent which the other party can obtain full satisfaction from the principal when the agent has the representative authority. And they explain that the ground of agent’s responsibility is for the sake of the protection of other party’s reliance, transaction safety and confidence of agent system, and they also explain that the character of agent’s responsibility is no-fault liability provided by law. But I don’t think like them. I think, the ground of non-authority agent’s responsibility could be found in his will. More concretely, when the agent does not become aware of absence of authority, he must be liable to the other party for his will of warranty on the existence of representative authority, and the other side, when he become aware of it, he must be liable to the other party for his will of warranty on the principal’s ratification. Moreover, although the agent has not representative authority, he is also liable to the other party for effect of contract between the agent and the other party. Because the contract between them is effective so far as the general condition of contract is fulfilled. Therefore he is liable to the other party for the performance of the contract or for the compensation to damages on the ground of their valid contract, although the contract is ineffective for the principal.