民法 第126條의 正當한 理由의 存在에 대한 判例理論에 관한 小考

On existence of justifiable reason the great part of jurists and judicial precedents believe the agent had the right of agency by the other party even on overstepping in question, and understand that the belief is identical with no-fault, or liability without fault. And existence of justifiable reason is judged on the assumption of objective conditions seen from the other party in the transaction. Therefore, when existence of justifiable reason is judged from subjective observations as in the cases of the great part of jurists and judicial precedents, conditions of the principal that may not be judged subjectively including, for instance, the apparent representation bestowed of the right of agency forged or stole the principal’s seal or registration documents for embezzlement are difficult to consider in the judgment of justifiable reason. Although on an apparent agent is essentially the agent without authority, the principal has to have the effects identical from agency with authority. Therefore, under apparent representation the principal cannot reject the performance requiring of the other party and should be burdened with responsibility of performance. Nevertheless, the great part of jurists and judicial precedents have discussed apparent representation just as a system for protecting the other party, not focusing on the protection of the principal’s profit. Such tendency has been considerably criticized, and recently some jurists seek to the balance between dynamic and static profit by limiting the scope of recognition of the protection of the other party by self-responsibility or self-responsibility factors of the principal. As above-mentioned, when existence of justifiable reason is understood as liability without fault of the other party, it may be impossible to consider the conditions of the principal, or self-responsibility factors in the decision of existence of justifiable reason. However, when existence of justifiable reason and the liability without fault of the other party are regarded as separate requirements for each other, they can be considered in the decision of existence of justifiable reason. In this context, the intervention of the static profit of the principal and the dynamic profit of the other party can be obtained from existence of justifiable reason with the function of general provisions.