민법 개정(안)에서의 의사능력 규정 신설과 소비자계약 - 2017년 일본「민법」개정논의를 참고하여 -

The legislation of a Bill for Partial Amendment of Civil Code was pre-announcedon February 7, 2025 by the Civil Code Amendment Committee established on June 16, 2023. In this Bill for Amendment, a new article on mental capacity (article 3.2) was added, which is interpreted as the change in the definition of an individual from an abstract person to a concrete person in the Civil Code, and the pursuit of the principle of substantial contractual freedom through this change in perspective. The provisions on mental capacity are expected to affect the situatedness of the Civil Code and various consumer contract-related laws in the future, and the method of regulating mental capacity is also expected to affect the improvement of consumers' rights and interests. The purpose of this study was, accordingly, to review the contents related to mental capacity newly established in this Bill for Amendment by referring to the Japanese Civil Code Amendment in 2017, which is similar to above amendment. The review showed that, while in the past, the safety of transactions was given a little more priority through the dual system of legal capacity and capacity to act, this amendment introduces a system called mental capacity between legal capacity and capacity to act, thereby taking into account the individual specific circumstances of the trader. This means that the mental capacity system is a system to protect those who are not protected by the limited capacity system, and the criteria for selecting those who are not protected by the limited capacity system are ultimately the individuality and specificity of the legal act. This is not simply to protect consumers who are devoid of mental capacity from transactions, but also to request a change in the regulations that regulate the transactions themselves, assuming that consumers participate in the transactions, which is expected to be the foundation for establishing a civil law system that can impose a function that protects those with impaired judgment ability in practice, considering the special nature of each transaction. Ultimately, the establishment of mental capacity regulations is a major move in the Civil Code that allows the principle of private autonomy to be realized by considering the bounded rationality of individual consumers, and its implications for consumer contracts can be found here. However, there is a big difference in that mental capacity is a ‘qualification system’ while consumers are ‘situational indicators’. In addition, the mental capacity system is only a supplement to the limited capacity system such as the mentally unstable system and does not function to protect consumers who are temporarily or situationally vulnerable. Therefore, it is considered necessary to discuss the regulations that will play the role of general law on consumer contracts.