An Examination on the Doctrine of Negotiorum Gestio- focusing on limiting the doctrine to its proper scope -

다국어 초록 (Multilingual Abstract)

The provisions of the Korean Civil Code on negotiorum gestio are inherently vague by legislating morality. Considering the development of doctrinal orderly synthesis to be one of major tasks of Korean civil law system, it is not desirable to extend the scope of application of this inherently vague doctrine.
The doctrine of negotiorum gestio, based on altruism, should apply only in those few cases where the principal is unable to act on his own behalf. In this regard, it is open to question for some doctrinal writers and courts in Korea to attempt to extend the doctrine in recent. For the underlying idea of the Korean Civil Code is to encourage people to manage their own affairs for themselves rather than to encourage people to assist others in need. Also, today, in Korea, the cases in which an owner will be absent for the purpose of negotiorum gestio are rare due to the technological progress in the areas of communications and transportation.
Rather, I'd legislatively propose the obligation to notice to the owner prior to undertaking the management in the sense that a potential manager must first attempt to obtain an express or, at least, tacit mandate from the owner. Also, to prevent the distortion of the doctrine of negotiorum gestio, the Korean courts need to draw a distinction between the types of unjust enrichment interpretatively.

참고문헌 (Reference)

1 이병준, "사무관리 제도의 기능과 그 적용범위 - 계약이 성립하지 않거나 무효인 경우를 중심으로 -" 법학연구원 56 (56): 137-179, 2010

2 Wlassak, "Zur Geschichte der Negotiorum Gestio" 1879

3 John P. Dawson, "Unjust Enrichment" 1951

4 Ernest G. Lorenzen, "The Negotiorum Gestio in Roman and Modern Civil Law" 13 : 190-, 1928

5 Reinhard Zimmermann, "The Law of Obligations - Roman Foundations of the Civilian Tradition" 1996

6 Horst Eidenmüller, "The Common Frame of Reference for European Private Law - Policy Choices and Codification Problems" 28 : 659-, 2008

7 Karl N. Llewellyn, "Some Realism about Realism-Responding to Dean Pound" 44 : 1222-, 1931

8 Christian von Bar, "Principles, Definitions and Model Rules of European Private Law: Draft Common Frame of Reference (DCFR) (Full Edition)" 2010

9 Song Tuck-Soo, "New Lecture on Civil Law" 2010

10 Kim Hyung-Bae, "Negotiorum Gestio & Unjust Enrichment" 2003

11 Kim Hyung-Bae, "Lecture on Civil-Law Jurisprudence" 2010

12 Jee Won-Lim, "Lecture on Civil Law" 2010

13 Lee Eun-Young, "Law of Obligation - Individual Parts" 2005

14 Kim Sang-Yong, "Law of Obligation - Individual Parts" 2009

15 Kwak Yoon-Jik, "Law of Obligation - Individual Parts" 2003

16 Leland H. Ayres, "Comments: The Distinction Between Negotiorum Gestio And Mandate" 49 : 111-, 1988

17 Cheryl L. Martin, "Comments: Louisiana State Law Institute Proposes Revision of Negotiorum Gestio And Codification of Unjust Enrichment" 69 : 181-, 1994

18 Choi Byung-Jo, "Commentary Korean Civil Law Vol. 17" 2005

19 Lee Hyuk-Joo, "A Study on the Requirements of Negotiorum Gestio" 4 : 251-, 1996