민법 제150조의 적용대상 및 인과관계 문제에 관한 짧은 고찰

Article 150 of the Civil Act was not used much in the past, but recently, there are many practitioners and legal scholars who argue for its application. Nevertheless, research by civil law scholars is insufficient, so I believe that there is a need to study this article. As a result of reviewing the Supreme Court’s case law on Article 150 of the Civil Act, our Supreme Court is showing an attitude of deciding whether or not to protect under Article 150 based on the maturity (possibility) of the conditional right, rather than considering it as a subject of application of this article if it is only a ‘conditional right’. It can be concluded that this attitude of case law was most directly influenced by Japanese doctrine, and that the background was influenced by the discussions on the right of expectation by German scholars who distinguish between simple expectations and subjective rights of expectation. However, I have doubts about whether this attitude of case law that distinguishes the subject of application of this article is appropriate. And regarding the requirement of ‘causality’ in Article 150 of the Civil Act, the current academic conflict of whether or not to fully demand proof of a hypothetical causal relationship of ‘would the condition have been fulfilled if there had been no obstruction’ has its limitations due to the inherent special nature of ‘uncertainty’ that conditional rights have. Therefore, I propose that proportional damages can be paid by borrowing the theory of lost opportunity as an alternative.