약혼예물의 교부와 그 반환청구권의 법리

The Legal Foundation on an Exchange of Engagement Presents and its Restitution for Breach

It is still the custom of Korean society that in the middle of forming community through marriage, engagement presents are exchanged between two families as well as between couples, even though levels of the amount of money that is spent on engagement presents are various. While this grant of engagement presents is stemmed from the purchase marriage in ancient convention, today these gifts are exchanged in order to symbolize engagement. Although an exchange of engagement presents is functioned as a token of engagement and is beneficial to two parties by strengthening the fellowship of the two families involved in marriage, it could be misused as a way to express ostentation of the monetary power in family of one party. Since excessive engagement presents are far from being the evidence of completing engagements and emphasize the meaning of property, it is possible that complicated legal problems such as whom the presents belong would arise. In the case that two parties don't reach a marriage even after they exchange the engagement presents, concrete aspects of issues in property law are exposed as the legal problem whether two parties and families of the engagement could claim that their presents be returned. In the light of the legal characteristics, the exchange of engagement presents is not a juristic act subject to a condition subsequent upon non-fulfillment of the marriage, but a gift which is a juristic act subject to a condition subsequent upon non-continuance of marriage, where married couples are not recognized as their own communities since the length of time in marriage is not generally considered long enough. In principle, a responsible party who failed the marriage is able to claim the return of presents that he or she gave to the other party. However, if a party intentionally doesn't fulfill conditions against the principle of trust and good faith stipulated in article 150, the party is not able to claim the return of presents. In principle, the legal foundation of restitution claim for marriage presents is considered claim for real right founded on ownership. In addition, jurisprudence of restitution by rescission of contract is not applied to this matter. According to the precedent of the Supreme Court that adopts theory of direct effectiveness on real rights in the case of rescission of contract, the grantor of the presents would have the property right from the begging since the effect of transfer of real rights shall be deservedly lost and the validity of contract shall be retroactively extinguished when a contract is rescinded. However the validity of gift shall be lost thereafter on the ground of the article 147 clause 1, which is stipulates that fulfillment of condition is not retroactive subsequently. Although there are diverse opinions whether invalidity of underlying act would affect the transfer of real rights, theory of causation says that the giver is able to exercise the claim for real rights based on property right since the property right is recovered to the giver without delivery and registration.