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KCI우수등재 학술저널

혼인계약에서의 효과의사

대법원 2010. 6. 10. 선고 2010므574 판결

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The Korean Supreme Court in its judgment of 10, June 2010(2010Meu574) decided that the marriage between Korean man and Philippine woman is null and void because there was no agreement to marry between the two parties (Article 815 subparagraph 1 of the Korean Civil Code). Namely the Korean Supreme Court made the decision that the Philippine woman have had no intention to get married. This decision can be explained by the theory of declaration of untrue intention. But it is different from earlier decisions of Korean Supreme Court about declaration of untrue intention. In earlier cases Korean Supreme Court divided the intention about legal effect and one about economic effect. In addition, the Supreme Court distinguished a true desire from its intention. In this respect, if the declarant does not want the economic effect by that declaration or wants another economic effect, the declaration is not the one of untrue intention. The same is true of the true desire. Even thou declarant doesn t want the legal effect by that declaration, but if she or he accepts the legal effect, so she or he has the intention. In this case, Philippine woman has got married because she has wanted the economic promotion. However, its purpose is just related with economic effects. Thus, it can t influence on the validity of declaration. In addition, the Philippine woman is not really eager to get married but she accepts the legal effects of marriage. In this respect, she had the intention, and thus the marriage cannot be avoided. Of course she lived just one month with her husband and then left home. And the Korean Supreme Court may presume that she did not agree the sexual relation. However this author argues that it can be just a reason of divorce, not but void and null of a marriage.

Ⅰ. 대상판결의 검토

Ⅱ. 문제의 제기

Ⅲ. 판례에 따른 효과의사의 개념정의

Ⅳ. 대상판결에의 적용

Ⅴ. 결론

참고문헌

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