무효인 계약에 대한 이전 및 양도의 효과 - 금융산업의 구조개선에 관한 법률상 계약이전결정 및 민법상 계약양도를 중심으로 - - 대법원 2015. 7. 9. 선고 2015다1475 판결 -

The judgment or the subject of research is significant in that it stated that even an invalid contract could be transferred or assigned to a third party. The P&A as a method of resolving the failing financial institution is used much in the United States. This method is accepted in the subject judgment. In particular, the judicial precedent regarding the contract transfer decision used much to resolve the failing financial institutions sees to it that “the contractual position occurring in the financial transaction would be transferred to a third party effectively by a unilateral decision of Financial Service Commission, and thus, that it is a kind of the administrative measure effective according to the Civil Code.” The provision of ‘Act on the Structural Improvement of the Financial Industry’ (hereinafter referred to ‘the Act’) excluding the invalid contracts from the transfer may not well be compatible with the cause of the contract transfer system. If so, the failing financial institution that is expected to disappear in the future would take over the monetary settlement, causing loss to the other party of such invalid contract. The researcher agrees to the conclusion of the subject judgment, but does not agree to its jurisprudence. For example, the expression ‘the insurance contract invalid as of the date of transfer’ is not clear and further does not conform to the judicial reasoning, considering that the contract violating the mandatory rules is invalid absolutely. So, it is deemed necessary to consider the entire system of the contract transfer decision procedures encompassing the details of the transferrable contracts and their prices and thereby, examine the whole process of the system comprehensibly rather than stick to the expressions of the Act. After all, it would be most reasonable if both parties of the contract should decide on whether their contract would be included in the list of the transfer. In addition, although the current Act does not specify ‘the transfer of contract’, it would also be necessary to unify by amending the Civil Code the terminologies ‘transfer of contract’ and ‘acceptance of contract’ into ‘transfer of contract’ because it prevails actually. Lastly, it is regrettable that the subject judgment did not consider the degree of illegality of the case where the insurance contract had been made for an illegal collection of the insurance money, but declared the contract ‘invalid’ according to Article 103 of the Civil Code. All in all, it is deemed reasonable to solve such a case by applying Article 110 of the Civil Code regarding the defrauding. It is deemed necessary to more flexibly and elastically apply the legal provisions of the Act specifying the cases excluded from those of the contract transfer.