子의 共有財産의 擔保提供과 利害相反行爲: 대법원 2002.1.11 선고 2001다65960판결(공2002.473)

Provision of security of co-owned property and Act of conflicting interests

The purpose of this study is to analyse the verdict of the supreme court on January 11, 2002(No 2001 da 65960). According to the article 921 (1) of the Korean Civil Code about conflict of interests between a minor and the guardian or between another children, when the guardian want to do something in which the interests of guardian conflict with those of his or her child, the guardian must apply to the court for the appointment of a special representative on behalf of the child. This verdict is to confirm ruling that a person with parental authority, to re-pay the debt of a third party(in this case, his adult child) offers the minor's property, using representative authority, his proxy exercise of parental authority of the minor results in conflicts of interests of each parties involved. This judgement admits the possibility that the conflict of interests between a minor and his parent, may exist, because, in case of the reimbursement of the surety or the subrogation of the creditor, it may result in the minor's detriment. Thus the guardian's contract may be voided and thus the court must appoint a special representative. According to the previous doctrines, there are two explanations of whether a conflict of interests exists or not. One theory considers only objective factors of the case, which include the advantage of the child and disadvantage of the parent. The other concerns subjective conflict of interests, which could be decided in terms of motive, virtual effect, etc., irrespective of advantage or disadvantage to the minor. The former is of previous consistent position of the courts in deciding the existence of conflicts of interests. But in this judgement, the court, while standing by the precedents, expanses the extent of application of the ruling to protect the interest of the minors, by admitting the substantial factors, conflict of interests resulting from the enforcement of the security, etc. Despite this, others attempt to explain the judgement and solve this problem using theory of abuse of agency authority, which is said to be concise and coherent. In my opinion, this judgement, admitting the fact that a conflict of interests may exist in this case, is acceptable, speaking of only in this matter only. But to apply this theory to other cases, it needs study about the types of cases of conflicts of interests or introduction of the theory of abuse of agency authority as its legal basis.