사용대차의 종료에 관한 제613조 제2항 단서의 의미 ― 판례에 대한 비판을 중심으로 ―

A loan for use becomes effective when one of the parties agrees to deliver an object to the other party for his gratuitous use, and the other party agrees to return such object after having used and taken profits therefrom. There are several factors that leads to the termination of a loan for use. It is terminated by the expiration of the period when the parties specify a period of a loan for use(§613①). If the parties do not agree on a period of a loan for use, the loan for use is terminated when the borrower finishes using from the thing in conformity with the purpose specified in the contract or the nature of the subject matte. Provided, That the lender may rescind the contract for the future at any time after a reasonable period has elapsed to allow for the specified use of the object and the taking of profits therefrom(§613②). In addition, The lender may rescind the contract for the future when the borrower has died or has been declared bankrupt(§614). In addition, Some decisions of the Supreme Court of Korea has treated the breakdown of fiduciary relation between the lender and the borrower. To justify the new criterium made by the judical precedent, the rule of private autonomy seems to play a crucial role. If a party to a juridical act manifests an intention that is inconsistent with the provisions of laws and regulations that are not related to public policy, that intention prevails. Therefore, the judical precedent can be justified through the interpretaion of the intention of the parties even though that is inconsistent with the provisions of Civil Code