일본민법학의 계수가 부당한 경우 및 그 시정방안

Critical Analyses of the Adoption of Japanese Legal Theories

&nbsp;&nbsp;Ⅰ. Unreasonable Cases And Correction-Proposals on a Person<BR>&nbsp;&nbsp;1. Why is the other party to an act perfomed by a person under disability protected?<BR>&nbsp;&nbsp;In a Japanese leading civil law, the reason is that the other party is not a person who has been guilty of fraud or duress. A Korean leading civil law adopt this Japanese leading civil law.<BR>&nbsp;&nbsp;In my view, the reason is that voidance by a person under disability can be set up against a third person acting in good faith.<BR>&nbsp;&nbsp;2. Does Korea Civil Act Article 29 Clause 2 provide a exception?<BR>&nbsp;&nbsp;Korean civil laws are affirmative without a ground.<BR>&nbsp;&nbsp;I am negative, because this Clause has the same contents that Civil Act Article 748 has.<BR>&nbsp;&nbsp;Ⅱ. Unreasonable Cases And Correction-Proposals on a Juristic Person<BR>&nbsp;&nbsp;1. Is the power of representation of directors restricted by resolution of general meeting.<BR>&nbsp;&nbsp;As Japanese civil laws are affirmative, Korean leading civil laws are affirmative.<BR>&nbsp;&nbsp;But, I am negative, because Korea Civil Act Article 41 and Article 60.<BR>&nbsp;&nbsp;2. Can&quot;t a restriction placed on the power of representation of any director be set up a only third person acting in good faith, unless such restriction is registered?<BR>&nbsp;&nbsp;Japanese civil laws are affirmative, Korean leading civil laws are affirmative.<BR>&nbsp;&nbsp;I am negative, because Korea Civil Act Article 49 Clause 2 and Article 60.<BR>&nbsp;&nbsp;Ⅲ. Unreasonable Cases And Correction-Proposals on a Juristic Act<BR>&nbsp;&nbsp;1. The problems on Korea Civil Act Article 103<BR>&nbsp;&nbsp;In Japanese civil laws, the purpose of juristic act is adequate expression, because that Japan Civil Act Article 90 has the same expression.<BR>&nbsp;&nbsp;In Korean civil laws, in my view, the content of juristic act is adequate expression, because that Korea Civil Act Article 103 has the same expression.<BR>&nbsp;&nbsp;2. Where should unfair juristic act be commented?<BR>&nbsp;&nbsp;Korea Civil Act Article 104 is compulsory provision. Therefore, in my view, unfair juristic act should be commented in that content of juristic-act should not be against compulsory provisions.<BR>&nbsp;&nbsp;3. What does defective 「declaration of intention」 mean?<BR>&nbsp;&nbsp;In Japanese civil law, defective declaration of intention means declaration of intention by froud or duress.<BR>&nbsp;&nbsp;In Korean civil law, it has the same meaning that these Japanese civil laws has.<BR>&nbsp;&nbsp;In my view, defective declaration of intention involves not only declaration of intention by froud or duress, merely also defective declaration of intention under mistake.<BR>&nbsp;&nbsp;Ⅳ. Unreasonable Cases And Correction-Proposals on the Transer of Real Right<BR>&nbsp;&nbsp;In Japan Civil Act, the transer of real right by the juristic act takes effect without its registration or by delivery. But, In Korea Civil Act, the transer of real right by the juristic act takes effect on its registration or by delivery.<BR>&nbsp;&nbsp;Without reflecting on this difference, Korean civil laws adopt Japanese civil laws in many cases. Therefore, these Korean civil laws are unreasonable.<BR>&nbsp;&nbsp;In this thesis, I propose the views that correct these unreasonable civil laws.