Earticle

초록

영어

Most of jurists and lawyers do not clearly distinguish between the conception of the third party protected from defective contracts and that of the third party protected from avoided contracts in our country. But only about the third party acquired an interest of the right formed from the contract, they mostly agreed to telling that he is the third party protected
from defective contracts, on the other hand, is not the third party protected from avoided contracts.
The legislations of different countries are various. Even Japan's civil code, despite having been leavening our civil code very much and holding the many similarities to our legislations, has not regulations to protect the third party in psychological reserved representation, representation by mistake and compulsed representation. The nations that holds no regulation about false representation are continuously expanding the protection of the third party by precedents and theories. Except our country and Japan, there are no progress in regulations or legal theories to protect the third parties from avoidance of contracts.
In the country, there are regulations to protect the third parties not only from all shapes of defective contracts but also from avoidance of contracts, but the regulative expressions are different each other. And the reason is not clear still in the thinking of the Korean civil-code-makers, besides the substantial reason that the regulative expressions should be different is not found to us.
In the light of natures of defective contracts and avoidance of contracts, the protection of third party is more necessary in avoidance of contracts. Therefore it could be right in avoidance of contracts to allay the conception of third party, on the other hand, it could not be right in defective contracts to fortify the conception of third party. I think so.
Looking from the perspective of legal causes of rights, it is topical to plead details from a legal cause of right as the pleas against the exercise of right, and it is not reasonably different in the case of defective contracts and avoidance of contracts.
The argument that the right of the third party is the one included the possibility of losing his right in the case that the contract is avoided seems to potentially have a point. But it is not right to make the eligibility of third party strict only in the case of avoidance of contract and on the basis of the difference of legal causes of rights. In the light of the point that it should be same in defective contracts, the point that the legal idea of the protection of third party should include both of the persons that took the right from the very defective or avoided contract and the persons that took the right from the new legal cause based on the very contract and the point that centrifugal force is stronger to deny the effect and to make restitution in the case of defective contract than in the case of avoided contract.
In conclusion, the conception of the third party protected from defective contracts and that of the third party protected from avoided contracts are not different but same. All the buyers and legal seizers of the bond from the contract avoided should be regarded the very third parties protected from avoided contracts.

목차

Ⅰ. 서론
  1. 흠 있는 법률행위로부터 보호되는 제3자의 의미
  2. 계약해제로부터 보호되는 제3자의 의미
  3. 논점 정리
 Ⅱ. 제3자의 개념 및 논의 상황
  1. 제3자의 일반적 개념 및 분류
  2. 흠 있는 법률행위로부터 보호되는 제3자
  3. 계약해제로부터 보호되는 제3자
  4. 제3자 적격성이 문제된 사례
  5. 검토
 Ⅲ. 비교법적 검토
  1. 유럽 : 프랑스, 독일, 오스트리아, 스위스
  2. 영미
  3. 일본
  4. 검토
 Ⅳ. 민법 규정의 검토
  1. 법 규정
  2. 입법과정
  3. 검토
 Ⅴ. 법률행위의 무효·취소 및 계약해제의 성질과 관련한 검토
  1. 무효·취소의 성질
  2. 계약해제의 성질
  3. 검토
 Ⅵ. 발생원인의 항변권과 관련한 검토
  1. 분쟁에 있어서 청구와 항변의 양상
  2. 검토 : 발생원인의 항변권
 Ⅶ. ‘새로운 법률원인으로 인한 권리’와 관련한 검토
 Ⅷ. 결론
 참고문헌
 

키워드

법률행위의 무효 법률행위의 취소 계약해제 제3자 보호 허위표시 통정허위표시 법률원인 새로운 법률원인 이해관계 권리의 취득 invalidity of a contract cancellation of a contract avoidance of a contract protection of third party false representation false representation agreed with the other legal cause new legal cause acquisition of an interest acquisition of a right

저자

• 김동호 [ Kim, Dong-Ho | 전남대학교 법학전문대학원 교수. ]

참고문헌

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