기화주제(企畵主題)(민법학(民法學)의 과제(課題)) ; 한국(韓國)의 례사상(禮思想)과 법률(法律)에 관(關)한 소고(小考)

황영두 ( Yeong Doo Hwang ) 경성대학교 법학연구소 2014 경성법학 Vol.23 No.-

Korean traditional norms are Confucian Ye (禮- decorum), which is a value system working prior to the order of positive laws. In Korean traditional society, the purpose of laws is observing Ye as well as behavioral norms derived from Ye, and accordingly the laws were established in order to enforce Ye and to punish any behavior violating Ye. According to Ye thought, in a human community behavior complying to Ye is an area of freedom and behavior deviated from Ye invites regulation from outside or becomes subject to criminal punishment. Ye thought has been discussed as an ancient Chinese thought since thousands of years ago, and it is an undeniable fact that the thought was transmitted to Korea and has been settled as legal culture for Korean people to the present. That is, behavioral norms, social norms, and legal systems based on Ye thought have been continued until now throughout Korean history, and a large part of Korean people``s legal culture and legal values is also based on Ye thought. With regard to the relationship between Ye and laws, first, Ye is a thought complying to the order of nature and is a human reason following the way of heaven. Second, Ye is a thought of life respect. Third, Ye is a human behavioral norm. That is, it is a personal norm for the discipline of individuals and, at the same time, a social norm to be observed by society members. Fourth, Ye is a rule followed by coercive power. Ye has comprehensiveness as a law in that any norm established by society members`` agreement can be called a law. Fifth, the essence of Ye does not change through times and countries, but its interpretation and operation may be different, Sixth, Ye is a comprehensive norm embracing all lawabiding areas to which laws are not applicable. Seventh, Ye also playa role as a natural law. That is, Ye is the foundation of positive laws and, at the same time. it plays the role of a natural law that is superior to positive laws. Recently with the emergence of the theory of national restructuring in Korea, discussions are continued on the amendment of the Constitution, and attempts and efforts are being made to solve social problems by changing laws and systems such as governmental structures, power structures, the Government Organization Act, and related institutions, but from the viewpoint of Ye thought and laws, the theory of national restructuring, which is limited to the restructuring and partial reshuffle of the central government, division or merge of jobs among departments, is somewhat inadequate as an approach to solve current problems in Korea. With regard to the objects and methods of national restructuring, the key is not the reform of hardware, but the reform of software should come first or the two should take place simultaneously. Through in depth discussion on Confucian democracy. moreover, the relationship between Ye thought and laws should be restructured fittingly to the current situation of Korea. That is. all laws and regulations should be reviewed based on Y thought so that they match the etiquettes and proprieties of democracy and human love. In particular, Korean laws that are contradictory to Ye or that fail to reach the level demanded by contemporary Ye thought should be studied more intensively and renewed into behavioral norms in harmony with Ye thought.

민법상 성년후견제도에 관한 고찰

황영두 ( Yeong Doo Hwang ) 경성대학교 법학연구소 2011 경성법학 Vol.20 No.2

The guardianship system in the Civil Code had problems such as people`s avoidance of the incompetent person system, shortcomings related to proteges` wellbeing, difficulty in the protection of juristic acts by the aged with low decision making ability, and difficulty in the protection of the disabled. To cope with these problems, the Amended Civil Code introduced the adult guardianship for adults without decision making ability. According to the system, the Family Court rules the appointment of adult guardians in consideration of expertise and fairness. In addition, the existing family council supervision system has been abolished and, instead, guardian supervisors are appointed who play the role of supervising guardians for proteges` well being. Moreover, two or more adult guardians can be appointed in order to prevent a single adult guardian`s arbitrary decision and to make joint efforts for the proteges` well being. Moreover, the guardianship contract system has been introduced newly in order to expand the area of proteges` private autonomy in determining the contents of guardianship through a contract with adult guardians. In case there is an order for the commencement of adult guardianship, the Family Court appoints adult guardians by virtue of its office for the person on whom the order was issued. Particularly as it is allowed for a juridical person to be appointed as an adult guardian, the roles of welfare institutions are expected to increase in the future. Adult guardians become the legal representatives of proteges, and the Family Court can delimit the scope of the authority of legal representation as well as the scope of authorities to make decisions on the protege`s personal affairs. Moreover, an adult guardian supervisor may demand adult guardians to submit reports on their performance of duties and property lists and can investigate the state of the protege`s properties. In order to settle adult guardianship in the future, it is necessary to solve problems related to the expenses adult guardianship. There would be no problem if the protege owns a large amount of properties, but if the protege is poor there should be supports from the state, local self governing bodies, insurance systems, etc. Because a protege`s medical acts are accompanied by risks involving the patients` body and health, such acts and particularly those invasive into the body require the patient`s consent or approval in order to be legitimate. However, it should be stipulated that treatment is possible without consent in life threatening urgent cases in order to prevent undesirable consequences or excessive expenditures. There should be measures to supervise adult guardians and prevent accidents if adult guardians take economic benefits other than just wages from their adult guardianship, or abuse the protege, or cause damage to the properties through negligence. Accordingly, it is necessary to raise experts who are able to carry out tasks related to adult guardianship, to educate involved people, and to develop methods to protect private information on registered cases of adult guardianship. Moreover, personnel in charge of adult guardianship should be secured in the relevant departments of the Family Court and administrative agencies, and unity should be established for proteges among insurance systems, adult guardianship in the Civil Code, and elderly welfare in administrative systems. In order to settle adult guardianship enacted with good purposes such as the protection of proteges` human rights and properties and the protection of their juristic acts as well as their opponents, related laws need to be finalized early through intensive discussions before they are enacted.

논문 : 자유주제(自由主題)(지적재산권의 보호와 한계) ; 부동산(不動産) 거래(去來)와 권원보험(權原保險)

황영두 ( Yeong Doo Hwang ) 경성대학교 법학연구소 2009 경성법학 Vol.18 No.1

논문 : 자유주제(自由主題) : 사정변경의 원칙

황영두 ( Yeong Doo Hwang ) 경성대학교 법학연구소 2010 경성법학 Vol.19 No.1

Discussion on whether the principle of circumstance change should be applied to the Law of Contracts on the whole has already been concluded by deciding to stipulate it in Article 544-4 of the Amendment of the Civil Law. Still, however, specific discussion has been insufficient on In what contract relations should the principle of circumstance change be acknowledged? The Supreme Court acknowledges the principle of circumstance change only in continuous contract relations, and not in sales contracts, which are temporary contract relations. The Law of Contracts acknowledges the binding force of contract by applying the principle of contract compliance, but exceptionally it acknowledges the principle of circumstance change by expanding the principle of good faith for fair transaction contracts and the sharing of risk. In conclusion, even in the Law of Contracts that acknowledges private autonomy, a contract can demand the change of the contract to the opposite party before complete performance of the contract if there is a change of circumstance that destroys fairness, equity, justness or the principle of good faith and sincerity in the contract. Thus, it is valid to interpret that if the contract parties fail to reach an agreement on the change, the claiming party can bring the case to the court for adjusting or changing the contents of the contract, and if the changed contents are not performed or are rejected without a good reason, the party can terminate the contract.

재개발·재건축사업상 동의서 효력에 관한 연구

황영두(Hwang Yeong-Doo) 한국법학회 2011 법학연구 Vol.41 No.-

재개발 재건축 사업에서 각종 처분에 법률적 하자가 발생했다면 그 처분에 대해 취소하는 것이 법치주의에 맞다. 그러나 수많은 조합원이 각자의 이익을 다양하게 주장하고 사업의 대규모성으로 말미암아 많은 분쟁이 계속 발생하며 복잡한 법규와 절차 때문에 사업 진행이 매우 어려운 것이 현실이다. 동의서의 제출에 의하여 사업진행 후에 그 동의가 무효라고 한다면, 사업이 진행중인 재개발?재건축 사업이 원점으로 돌아가서 조합의 설립 자체가 의결정족수에 미달되어 무효가 되고, 그 효력이 소급하여 조합이 무효이므로 조합설립 이후에 조합이 행한 각종 법률행위, 즉 시공사 선정계약과 사업시행인가 등도 무효가 되는 결과가 발생한다. 그래서 사업이 장기간 연기되어 결국 사업비용이 막대하게 증가하게 되는데, 이러한 문제들을 방지하기 위해서는 첫째, 사업의 계획단계에서 조합 임원 등 자격과 능력이 있는 자가 책임을 지고 사업을 추진해야 한다. 둘째, 동의를 받을 때 사업의 필요성과 사업추진 절차와 사업의 수익성에 대해 충분히 설명을 해야 하며, 명확한 내용이 기재된 동의서와 인감증명서를 제출하도록 해야한다. 셋째, 조합설립인가가 되면 동의 철회를 할 수 없도록 해야 하며 매도청구는 가능하도록 한다. 넷째, 사업의 투명성을 높이기 위해서 조합원과 공공기관이 공동으로 참여하여 조합의 회계감사를 정기적으로 실시할 수 있는 권한을 가진 독립된 기구를 법규로 만들어야한다. 다섯째, 공공시설 설치에 대한 정부의 보조를 의무조항으로 하고 이주비에 대한 정부의 지원이 이루어진다면 조합의 이주비에 대한 비용증가로 분양가 상승하는 것을 방지할 수 있다. 재개발과 재건축 사업이 사업시행인가를 받았다면 사업무산으로 이익을 보는 자의 이익액과 손해를 보는 자의 손해액을 비교·형량 하여, 개인의 이익을 침해당했다고 주장하는 자의 이익침해가 조합의 사업추진 지연으로 발생하는 손해액 전체보다 적다면 그 개인의 침해당한 손해를 보충해주는 방법을 찾는 것이 바람직하다. Large cities become overcrowded with people, which, in turn, resulted in the housing problem due to in sufficient housing supply. In order to solve the housing problem in urban areas, a large number of aggregate buildings represented by apartments were constructed for rapid housing supply. In large city, aggregate buildings such as apartments and town houses were built to solve the housing problem. Most of apartment in large city which had been constructed in the 1970s and 1980s, were so dilapidated that demand for reconstructing all of them at once ware increasing high. In response to the demand, it was necessary to manage the reconstruction in a planned way. Housing Reconstruction is a system designed to enhance housing life quality by efficiently improving aging and deteriorated houses and it is an important means of recognizing the fundamental rights including the right to pursue happiness, right to own property, right to freedom of residence, and others under the Korean constitution. Housing Reconstruction is performed for the practical purpose of generating profits from development. Evokes speculations and causes serious social problems such as sense of comparative resentments and deprivations. There have been many legal disputes or conflicts in the past or even the present time concerning the Housing Reconstruction. Especially in the reconstruction of old and defective buildings the fundamental purpose of reconstruction and redevelopment is changed to pursue as a means of making real estate profit and thus many social problems are caused. Redevelopment and reconstruction projects is making dispute of written consent validity about the association cost share. And, consent retractors assert invalidity because they didn't listen to explanation about cost share. If written consent become invalidity, association establishment is invalid so legal act is invalid about builder selection contract. For prevent to projects cost increase, first, at the planning stage of projects, association officer responsible for the projects. Second, when consent to projects must explain necessity and projects propulsion process and profitability. Third, after association establishment permission have to block consent revocation. Fourth, for projects' transparency must found organization of a public in cooperation with financial audit. Fifth, government must support to cost about a public facilities establishment.

아파트분양계약과 사정변경의 원칙

황영두(Hwang Yeong-Doo) 한국법학회 2009 법학연구 Vol.34 No.-

아파트분양계약을 체결한 후 세계적인 금융위기와 부동산경기 침체로 인근 아파트의 가격이 현저히 하락한 경우에 사정변경의 원칙을 적용하여 분양금의 인하를 요구할 수 있는가? 이러한 경우에 사정변경의 원칙을 적용하여 계약변경의 요구와 함께 아파트분양계약의 해제를 주장할 수 있을까? ‘완공 전 아파트분양계약’은 계약 당사자 사이에 장기간 권리와 의무가 지속되는 계약의 성질이 있으므로 사정변경의 원칙을 적용할 수 있는 계약관계이다. 계약법에서는 계약준수의 원칙이 적용되어 계약의 구속력이 인정되지만, 그 예외로써 사정변경의 원칙이 인정되는 이유는 공정한 거래계약과 위험의 분담이라는 신의성실의 원칙에 근거한 것이다. 글로벌금융위기와 전반적인 부동산경기침체로 발생한 ‘완공전 분양계약 아파트’의 가격하락 문제에 대해 사정변경의 원칙을 적용하지 않는 것은 경제적 약자이며 거래를 제한받는 아파트 분양권자에게만 부당한 위험을 부담지우는 결과이므로 공평한 위험분담의 원칙에 의해서 계약내용의 변경청구권과 계약해제권을 인정해야 한다. 만약 계약 당사자 사이에 합의가 이루어지지 않으면 사법부에 계약의 내용변경을 청구하여 아파트분양계약의 내용을 조정하고 변경하는 판단을 구할 수 있을 뿐만 아니라, 변경된 계약내용에 대해 정당한 이유 없이 이행하지 않거나 거부하는 경우에는 계약의 해제도 가능하다고 해석하는 것이 계약정의다. In case the price of neighboring apartments has fallen markedly due to global financial crises or the depression of real estate business after an apartment sales contract was concluded, can the buyer demand a change in the contents of the contact to lower the price by applying the principle of circumstance change? In such cases, can apartment purchasers assert the termination of apartment sales contract along with demanding the change of contract based on the change of circumstances? The Law of Contracts acknowledges the binding force of contract by applying the principle of contract compliance, but exceptionally it acknowledges the principle of circumstance change by expanding the principle of good faith for fair transaction contracts and the sharing of risk. In addition, even for an apartment sales contract, it has priority to perform the contract according to the purpose of the contract, and therefore, risk in the contract should be shared by providing an opportunity to change the contents of the contract for fairness rather than terminating the contract immediately for the reason that there is a change of circumstance. If the parties fail to reach an agreement or reject the courts decision, the party affected by the change may terminate the contact. Accordingly, it is unfair to place the whole risk of the fall of apartment price caused by global financial crises and the depression of the real estate market on the purchase right holders, and the rights to change the contents of contract and to terminate the contract should be acknowledged by the principle of fair risk sharing. In conclusion, even in the Law of Contracts that acknowledges private autonomy, a contract party of an apartment sales contract can demand the change of the contract to the opposite party before complete performance of the contract if there is a change of circumstance that destroys fairness, equity, justness or the principle of good faith and sincerity in the contract. Thus, it is valid to interpret that if the contract parties fail to reach an agreement on the change, the claiming party can bring the case to the court for adjusting or changing the contents of the contract, and if the changed contents are not performed or are rejected without a good reason, the party can terminate the contract.