민법 제29조(실종선고의 취소)에 대한 해석·입법론적 비판

The text of clause 1 of Article 29 of the Civil Act provides the requirements for and principle effects of the adjudication of disappearance, the proviso of the same clause provides exceptions from the principle with a view to protecting legal relations formed trusting the adjudication of disappearance, and clause 2 of the same article provides the status of the direct beneficiary in accordance with the adjudication of disappearance. The principle in the effect of the cancellation of the adjudication of disappearance is that legal relations formed due to the adjudication of disappearance are extinguished retrospectively. Although not stated in the law, the principle can be easily inferred from the proviso of clause 1 of Article 29 ("However, the cancellation does not affect the validity of the act conducted in good faith after the adjudication of disappearance and before the cancellation."). Meanwhile, although the view of the majority regards clause 2 of Article 29 as an exception from the principle effects of the cancellation of the adjudication of disappearance, it is difficult to regard as such and the clause should be regarded as a provision that determined the status of the direct beneficiary in accordance with the adjudication of disappearance. In particular, the cancellation of the adjudication of disappearance should be regarded to be intended to impose ultimate obligation for liquidation on the direct beneficiary of the adjudication of disappearance and in this case, clause 2 of Article 29 should be approached in close relationships with the proviso of clause 1 of Article 29. The most salient point in the interpretation of the proviso of clause 1 of Article 29 is the concrete meaning of the ‘good faith.’ Although there have been diverse views on the ‘good faith', the good faith and bad faith of the third party in question should be judged individually and relatively for the following reason. Clause 2 of Article 29 provides both cases where the direct beneficiary of adjudication of disappearance is in good faith and in bad faith and this means that the proviso of clause 1 of Article 29 can be applied even when the direct beneficiary is in bad faith. Therefore, if the good faith of the direct beneficiary of the adjudication of disappearance is demanded as a requirement for the application of the proviso of clause 1 of Article 29, the case of bad faith out of the content of the norm of clause 2 of Article 29 will not have any opportunity for application at all. This is against the regulation plan of clause 2 of Article 29 that encompasses not only cases of good faith but also cases of bad faith. In addition, the norm to protect third parties in good faith is ultimately intended to protect the safety of transactions. Therefore, since the legal relations of parties to transactions after the bona fide persons in question have been formed based on the legal status of them, the clause should be interpreted so that in cases where there are bona fide persons among the subsequent purchasers from the direct beneficiary of the adjudication of disappearance, subsequent purchasers after them should be protected even if they are in bad faith. However, since the intent of the proviso of clause 1 of Article 29 is to protect the safety of transactions, this provision should be regarded to be not applicable to marriage. That is, with regard to the issue of whether the previous marriage should naturally revive following the cancellation of the adjudication of disappearance, our Civil Act is in the state of ‘lacune du droit.’ If lacune du droit has been found, legislative work should be conducted ultimately and interpretative alternatives should be sought before legislation. If lacune du droit is complemented with the theory of interpretation, the view that even if an adjudication of disappearance is cancelled, the previous marriage will not revive and only marriages after the adjudication of disappearance are valid should be taken as a principle.