「민법」상 고용 유사 위임계약의해지권 제한 특약에 관한 연구

The mandate contract is based on a strong trust relationship between the contracting parties.  Therefore, it is in line with the essence of the mandate contract to allow the contracting party to terminate the contract at any time when it is difficult to maintain the trust relationship between the contracting parties. Accordingly, Article 689 (1) of the Civil Act also recognizes the freedom of mutual termination for a mandate contract. However, there are many cases where the parties enter into a special agreement to restrict the termination right in the mandate contract.  The question is whether such a special agreement can exclude the application of Article 689 (1) of the Civil Act. In particular, the case where one party is in the position of the economically weak may be a problem. In other words, it is necessary to consider that it is unfair to have one party, who is an economically weak person, be bound by a mandate contract even in a state where the trust relationship has collapsed due to a special agreement to restrict the right to terminate. Typically, the above problems mainly occur in mandate contract similar to employment.  Therefore, first of all, it is necessary to establish the concept and criteria for judgment of a mandate contract similar to employment in which the delegate is in the position of the economically disadvantaged. In this regard, basically, it is possible to determine whether a contract is a mandate contract similar to employment, focusing on economic dependence and social protection, which are indicators or factors representing employment factors. In addition, based on this, it is possible to finally determine whether it is a mandate contract similar to employment by comprehensively taking into account all elements or indicators of the contract, such as whether the substance of the contract is to provide delegated affairs in a subordinate relationship for the purpose of remuneration. On the other hand, according to the legislative theory, it is necessary to protect the legal status of the delegatee in a mandate contract similar to employment by making Article 689 (1) of the Civil Act a one-sided compulsory provision. However, under the current legislative system, Article 689 (1) of the Civil Act must be interpreted as a discretionary provision.  In such a case, it is necessary to seek alternatives to protect the Delegatee if there is a special agreement to restrict the right of termination in the mandate contract similar to employment. In this regard, there is a way to actively apply the principle of change of circumstances. Therefore, even if there is a special agreement to restrict the right to terminate in a mandate contract similar to employment, the delegatee may exercise the right to terminate based on the principle of change of circumstances, and it is reasonable to interpret whether the requirements are met as actively as possible.