신의성실의 원칙의 적용 영역 확장에 따른 위험성에 관한 소고

1. In this paper, the dangers arising from expanding the application area of the ‘principles of good faith (Treu und Glauben)’ which is evaluated as the most critical general clause in the civil law in these days, were exhaustively discussed. The civil code of Korea outlines the general clauses of the principles of good faith in Article 2 and specifically defines various cases throughout the book. In addition, the good faith is also set forth in the laws regulating contracts as well as in the Code of Civil Procedure as the general principle. Furthermore, the principle of good faith is defined as general clauses not only in the judicial domain but also in the administrative law and the tax law, continuously expanding its application area. 2. The Supreme Court of Korea is also expanding the application of the principle of good faith to a new domain. However, there are many cases of courts’ rulings in which the principle of good faith is extended ‘without any sound reasons.’ For example, for many cases attracting the interest of many people such as the protest against the extinctive prescription of the past and the problems of the normal wage and the tax reduction, it seems as if the laws try to simply flee with the principle of good faith rather than seeking reasonable legal principles. 3. Such precedents extending the application of the principle of good faith undermine the stability of laws, weaken the lawyers or cause them to exercise arbitrariness. Such extension of the principle of good faith, which causes such risks to the law and jurisprudence, should be prevised. Especially those cases contrary to the principles of clarity required by the tax laws or adding ‘a considerable period’ condition for a plea of completion of extinction prescription lack rationality. Such cases may cause damages to legal stability and lead to arbitrary interpretation by the judiciary.