프랑스 민법상 위임

Implications of the French Mandate Law Reform for the Korean Civil Code Revision

This paper examines the recent discussions and proposed amendments to the law of Mandate (Le Contrat de Mandat) in the French Civil Code and derives key implications for the revision of the Korean Civil Code. The proposed reforms address several deficiencies and ambiguities in the existing law, offering a blueprint for enhancing fairness and clarity in fiduciary relationships. Mitigation of Mandatary's Liability in Gratuitous Mandate: The court should be empowered to mitigate the mandatary's liability in cases of gratuitous mandate (mandat à titre gratuit), recognizing the generally lower standard of care expected in unremunerated services. Non-Joint and Several Liability for Multiple Mandataries: The rule should affirm that multiple mandataries are not jointly and severally liable (non-solidarité). Each agent's actions are independently attributed to the principal. Joint and Several Liability for Multiple Mandators: When multiple mandators jointly appoint an agent for a common affair, they should be subject to joint and several liability (solidarité des mandants), preventing the abuse of the mandate system by ensuring a shared burden. Judicial Reduction of Excessive Remuneration: Courts should have the authority to reduce excessively high remuneration agreed upon before the start of the affair (réduction de la rémunération excessive). Explicit Regulation on Reimbursement of Incurred Expenses: The Korean Civil Code must explicitly state that the mandator is obligated to pay expenses already incurred by the mandatary without delay, rather than relying on interpretation. Limitation of Non-Notification Defense: The provision regarding the non-notification of the grounds for termination should be revised to only prevent the assertion of termination grounds against the mandatary (similar to French law on non-opposabilité de la révocation), limiting the legal effect on the principal.