신의칙과 권리남용금지원칙의 가족법관계에의 적용

The Application of ‘the Principle of Trust and Good Faith’ and ‘the Principle of Abuse of Right’ to juristic relations in the Korean Family Law

In general, the Principle of Trust and Good Faith and the Principle of Abuse of Right are considered fundamental rules that should be applied to juristic relations in the jurisprudence of the Family Law as well as the Property Law. The Korean Civil Law also makes it clear by stipulating these two primary doctrines in the article 2 of the General Provisons. Since the Principle of Trust and Good Faith of the article 2 in the Korean Civil Law is the prototype of general clauses without written requisites and effects, the limit of application of this principle into legal questions should be clarified so that the court may not use this open principle improperly as a strong tool of arbitrary interpretation. Therefore, even in the domain of the Family Law, it is indispensable to analyze in detail and classify the types to which the Principle of Trust and Good Faith works appropriately. In consequence, in the Family Law, it is apparent that these two fundamental principles have functioned mainly as ground to explain and justify exceptional cases concerned where the traditional and prevalent way to interpret law would lead to sacrifice fairness, and thus methods of interpretation other than the conventional one are to be applied. Furthermore, these two principles are not only used to interpret positive laws, but they are also often mentioned as foundation in order to rule out or expand applications of the positive laws. Moreover, it is also noteworthy that the Abuse of Right Principle is more referred to than the Trust and Good Faith Principle when it comes to judicial precedent in the Family Law. Besides, among the cases in the Family Law to which the Principle of the Trust and Good Faith is applied, there are more cases that involve individual interest in properties or that fall into the realm of the Inheritance Law than the cases that involve the rights and the obligations arising from familial relations. As a consequence, since protecting private rights is the starting point and guiding ideology of the Korean Civil Law, the Principle of Trust and Good Faith plays a merely minor role in order to maintain this major tenet of the private law.