‘허락을 얻은 특정한 영업’에 대한 한정치산자의 행위능력 ― 비교법과 입법과정을 통해 본 민법 제10조의 문제점 ―

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.