‘허락을 얻은 특정한 영업’에 대한 한정치산자의 행위능력

The capacity of a quasi-incompetent person in respect of a particular occupation for which permission was granted: An examination of the legal problems of article 10 by means of studying the enactment procedure and conducting a comparative analysis

This paper examines the legal problems of article 10 of the Korean Civil Code by means of studying its process of enactment and conducting a comparative analysis of other civil laws, after which a solution will be offered. Article 10 of the current Korean Civil Code stipulates that the provisions of articles 5 through 8 above shall apply mutatis mutandis to the quasi- incompetent persons as in the case of minors. Consequentially, in respect of the particular occupation for which permission was given by the guardian, quasi-incompetent persons possess the same capacity that majors do. However granting full capacity to quasi-incompetent persons who relatively lack in judgement goes against the very purpose of quasi-incompetent system. A comparative analysis reveals that in French, German, Japanese and Manchukuo s civil codes, permission granted to a quasi-incompetent person by the guardian does not entail the major s full capacity. Moreover, during the enactment procedure of the Korean Civil Code, there was an attempt to exclude the applying mutatis mutandis of article 8 in article 10. Problematic is not only article 10 itself but the proposition that the capacity of a quasi-incompetent person is identical to that of a minor . The latter is a mere dogma and this influences the interpretation of the rest of the article. A solution may be offered by interpreting that only articles 5 through 7 apply mutatis mutandis in article 10. However it would be more appropriate to amend article 10 so as to stipulate such a provision, regardless of how seldom the problem can arise in actual practice.