委任人에 의한 任意解止의 制限 － 민법 제689조 제1항의 축소해석 － (Restriction on arbitrary termination by mandator)

서지정보

· 발행기관 : 한국민사법학회
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· 저자명 : 박인환

초록

According to the Art. 689 Korean Civil Code(KCC), the mandator and mandatary can arbitrarily terminate each other the relation of mandate at any time. It is said that The Art. 689 KCC is based on the extraordinary personal confidential relation between mandator and mandatary or the rule of gratuitous mandate. But that agree with the actual circumstances of modern society no more. Because more and more have the cases increase that mandate is not based on extraordinary personal confidential relation and onerus mandate is given much weight in modern society than the past.
Therefore, the court and literature have restricted the application of the Art. 689 KCC. to recognize the agreement on renunciation of termination of mandate between mandator and mandatary, or to exclude it for a mandate for mandatary's interests or the third party's and for a mandate that constitute a part of another contract.
On the basis of results from the study on comparative Law, the Roman Law, French Law, German Law, Japanese Law, I suggest that Art. 689 KCC need the restrictive construction and should apply to the only cases that the mandate is based confidential relation between mandator and mandatary in actuality. The standard of judgement on confidential relation are, for example, whether is the mandate gratuitous, whether is the mandate accompanied by the competence of mandatary to do legal transactions for mandator, whether is executed the mandate in the professional activity of the mandatary.

영어초록

According to the Art. 689 Korean Civil Code(KCC), the mandator and mandatary can arbitrarily terminate each other the relation of mandate at any time. It is said that The Art. 689 KCC is based on the extraordinary personal confidential relation between mandator and mandatary or the rule of gratuitous mandate. But that agree with the actual circumstances of modern society no more. Because more and more have the cases increase that mandate is not based on extraordinary personal confidential relation and onerus mandate is given much weight in modern society than the past.
Therefore, the court and literature have restricted the application of the Art. 689 KCC. to recognize the agreement on renunciation of termination of mandate between mandator and mandatary, or to exclude it for a mandate for mandatary's interests or the third party's and for a mandate that constitute a part of another contract.
On the basis of results from the study on comparative Law, the Roman Law, French Law, German Law, Japanese Law, I suggest that Art. 689 KCC need the restrictive construction and should apply to the only cases that the mandate is based confidential relation between mandator and mandatary in actuality. The standard of judgement on confidential relation are, for example, whether is the mandate gratuitous, whether is the mandate accompanied by the competence of mandatary to do legal transactions for mandator, whether is executed the mandate in the professional activity of the mandatary.

참고자료

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