효력규정의 실효성을 제고하는 일부무효의 법리 적용례에 관한 고찰

A Study on Applicable Examples of Partial Nullity for Efficiency Gains of Compulsory Provisions

The Korean Civil Act provides a juristic measure in a case where a part of a juristic act is invalid. In other words, it regulates whether an entire legal act shall be null, in other words, if a part of a juristic act is null, then the rest of the juristic act shall not become invalid. The context of this regulation is included in Art. 137. The proviso of Art. 137 stipulates that though a part of a juristic act is null, the remainder could be valid in a case where it is deemed that the juristic act would have been done if the null part had not existed. In this way, Art. 137 of the Korean Civil Act provides a legal basis for partial nullity of juristic acts. However, if stipulated in certain special regulations, the special regulation pertaining to partial nullity has to be applicable before applying Art. 137. This article examines, on the basis of the general contents of partial nullity, how the Korean courts have recently applied the juridical principle of partial nullity(Teilnichtigkeit) to some cases, such as cases of excessive interest rates in loan contracts, undue contingent fee cases, cases that fall under Medical Service Act, Commercial Act, or previous Mutual Savings Banks Act, and a case of rescission of contract. Partial nullity was applied to some cases involving excessive interest rates in loan contracts. It was also applied to cases involving undue contingent fees in mandate contracts between lawyers and clients. At the same time, the criteria of juristic acts contrary to social order was examined. It was also judged whether disputed cases met standards of the principle of trust and good faith or the rule of equity. In addition, the fact that the juristic act maintained by partial nullity meets standards such as social order or the principle of trust and good faith was also examined. So, the partial nullity agreement is devoted to equality in juristic relations. In other words, this principle provides a mechanism specifically aimed at increasing the equality of human beings, for example, in cases involving excessive interest rates in loan contracts and cases of undue contingent fee, and so on. Hence, this study examined applicable examples of partial nullity and its role as a corrective function with the ability to regulate juristic acts that are contrary to “good morals and other social order” and as a means of achieving efficiency gains of compulsory provisions.