失踪宣告 取消의 效果에 대하여 - 실종선고 후 그 취소전 잔존배우자의 재혼을 중심으로

• 영문명: A Consideration regarding the Effect of revoking Adjudication of Disappearance - Concerning the remarriage of the remained spouse after adjudicate the disappearance and before cancel it -
• 발행기관: 한국재산법학회
• 저자명: 南潤鳳(Nam Yoon-Bong)
• 간행물 정보: 『재산법연구』財産法硏究 第23卷 第2號, 77~97쪽, 전체 21쪽
• 주제분류: 법학 > 법학
• 파일형태: PDF
• 발행일자: 2006.10.01

영문 초록

  Article 29 of the Korean Civil Law provides that the court, according to the request of the person him/herself or the persons interested, must revoke adjudication of disappearance, if it is proved that a missing person is alive. However, it states that the revocation shall not prejudice the effect of an action in good faith conducte  from the day of adjudication of disappearance
up to the time of revocation.
  Although this provision, however, is in accord with the basic principle of protecting the right of a third party acting in good faith, it goes against the rules that the intention of an actor him/herself should be absolutely respected in legal action regarding the laws of domestic relations and inheritance. Accordingly, in the case that the living spouse of a missing person with adjudication of disappearance, knowing the missing spouse is in fact alive, marry again another person after the adjudication, the second marriage will become null and void if the court revokes the adjudication of disappearance because the living spouse is ill-intentioned. In that case, the living spouse"s real intention of remarriage will not be sufficiently protected. Consequently, the rules that the intention of an actor him/herself should be absolutely respected in legal action regarding the laws of domestic relations and inheritance will be easily violated.
  In order to correct this error, I suggest the current article 29 of the Civil Law be revised as follows,
  ⅰ) Paragraph 2 should newly provide that "Even if the adjudication of disappearance is revoked, the marital relations remain annulment. However, it shall not prejudice the effect of an action regarding the law of property in good faith conducted from the day of adjudication of disappearance up to the time of revocation," and
  ⅱ) Current paragraph 2 should be changed to paragraph 3.
  In conclusion, if so, the legal confusion will be in advance prevented as well as legal repugnance between the general provisions and the law of domestic relations in civil code can be solved.

목차

Ⅰ. 問題의 提起
Ⅱ. 家族法的 身分行爲의 法的取扱
Ⅲ. 現行 民法上 失踪宣告 取消의 效果
Ⅳ. 殘存配偶者의 惡意의 再婚問題
Ⅴ. 民法 제29조의 改正案 提示
Ⅵ. 結語
참고 문헌
〈Abstract〉

키워드

실종선고 실종선고 취소의 효과 실종자 생존배우자 선의ㆍ악의 가족적 신분 재혼 재산관계 본인의사 본인의사절대원칙 법의 일반원칙 선의자 보호 법개정안 법리의 모순 민법 제29조 adjudication of disappearance revocation of adjudication of disappearance missing person living spouse good-intentionㆍill-intention family identity remarriage relationship of property legal action regarding the laws of domestic relations and inheritance intention of an actor him/herself revision protection of children contradiction of principle of law article 29 of the Korean Civil Law