소유권 행사와 권리남용의 요건

In Korea, “No abuse of rights shall be permitted” is provided in Paragraph 2 of Article 2 of the Civil Law. This provision is related to ‘the principle of prohibition of abuse of right’. But the provision is so abstract and has a broad outline, thus, it is not easy to recognize the abuse of right in many case. The provision like this is called ‘general clause’ and the provision about the prohibition of abuse of right is representative of general clause. Since early time, there have been many discussions about the translation of this provision, mostly relating to the requirement of abuse of right. Related to the translation of the provision, many scholars discuss whether a subjective requirement is necessary to find the abuse of right in addition to an objective requirement. The subjective requirement means the purpose or intention of the exercise of right is only to do harm or damage to the others, and the objective requirement means the exercise of right goes against the sociality and public nature of right or infringes social order. Regarding this point, specially, in ‘the exercise of proprietorship’, almost all judicial precedents have declared that subjective requirement is necessary to find the abuse of right in addition to objective requirement. The theory of judicial precedents seems to be derived from the translation of Article 226 of German Civil Law. In Germany that theory is called the principle of ‘Schikaneverbot’. In addition, according to the theory of judicial precedents, the subjective requirement can be presumed by the objective conditions which make right user unlawful. And judicial precedents say whether the exercise of right is applicable to the abuse of right must be decided by individual case according to concrete situations. Therefore some scholars have the same views as judicial precedents about the abuse of right and they assert the recognition of abuse of right should be limited only when the subjective requirement is satisfied. On the contrary, many scholars have the standpoint that abuse of right can be recognized only with the objective requirement, such as comparing the benefit coming from the act of the right user and the loss of the opposite parties. But nowadays, the commonly accepted theory of judicial precedents reveals many problems to apply the principle of prohibition of abuse of right to a individual case. Above all, the subjective requirement is no more than right holder’s inward thoughts or mind that are never known to the others. In this point, this study treats the problem of the theory of judicial precedents in relation to the exercise of proprietorship and the requirement of abuse of right. In conclusion, I’d like to say the subjective requirement, that is, the purpose or intention of the exercise of right only to do harm or damage to the others, is not the mandatory precondition for recognition of the abuse of right. Therefore, I think the abuse of right can be established without the subjective requirement, and then the above judicial precedents should be abolished to make obvious the doctrine of abuse of right and to keep the sociality and public nature of proprietorship.