민법 제150조의 입법 목적과 유추적용 -우리 민법의 숨은 조항-

Article 150 of the Civil Act says that if a party who is to be disadvantaged upon the fulfillment of a condition has obstructed the fulfillment of such condition against the principles of trust and good faith, the other party may treat the condition as having been fulfilled. This is an explicit stipulation of a long-held legal doctrine, which has been consistently recognized in the law of major countries from the time of the Roman law. In other words, the pertinent provision can be understood as a codification of a universally reasonable legal idea, or, a basic and equitable legal principle, which can be summed up as “No one shall gain an advantage by his or her own wrong.” Embodying the idea of sanctions, this provision states that in the event where any person gains an advantage from his or her violation of good faith, the said person should not only be held accountable for compensating the opposite party for the damage caused by his or her act against good faith, but also the intended legal effect of the perpetrator has to be thwarted once and for all. Countries around the world extensively apply the foregoing provision not only in cases where the formation and expiration of the effect of a juristic act depends on the uncertain fulfillment of conditions in a strict sense in future, but also in cases where there is an agreement as to the requisites for the formation of individual rights between parties concerned, and furthermore, in a variety of cases where cooperation, which is expected in light of fairness, is rejected. It would be desirable, ipso facto, to interpret the relevant provision in this manner in Korean law as well.