의사결정의 자율성 보호와 그 제한 - 부당한 간섭에 의한 의사표시를 중심으로 -

초록

The core of the principle of private autonomy, a fundamental principle of our civil law, lies in the freedom of decision-making based on an individual's right to self-determination. While systems such as the capacity to act under civil law and provisions governing declarations of intent (Articles 107 to 110) are designed to protect an individual's freedom of decision-making. In contraast, civil law regulations concerning legal acts contrary to public policy (Article 103) and unfair legal acts (Article 104) are systems that restrict private autonomy. Article 110-2 of the proposed Civil Code amendment newly establishes provisions concerning declarations of intent made under undue influence, addressing the validity of declarations of intent in civil law. The primary argument opposing this new provision is that existing Articles 103, 104, and 110 of the Civil Code already provide sufficient means to resolve issues involving undue influence with the declarant in legal acts. However, a legal gap arises where no protection is afforded if the legal act does not reach the level of fraud or duress, or if no anti-social conduct or unconscionability can be recognized. The newly proposed Article 110-2 of the Civil Code serves precisely to fill this gap. Upon review, when a declaration of intent is made under undue influence, the essential issue lies not in the substantive unfairness of the legal act, but rather in the interference with the formation of one’s autonomous will during the decision-making process. As a prerequisite for its establishment, ‘undue influence’ infringes upon the freedom of decision-making through a coercive and manipulative manner that substitutes the interferer's mind for that of the interfered party, namely the declarant. Legal stability can be sufficiently secured through a strict interpretation of ‘psychological dependence or a close relationship of trust’. Even in case where the circumstances of undue interference with the declarant constitutes antisocial conduct or unconscionable exploitation, it is important to respect the declarant's decision regarding whether to assert absolute nullity under Civil Code Articles 103 to 104 or to assert the legal effect of voidability under the proposed Civil Code Article 110-2. This flexibility preserves the balance between honoring the declarant’s autonomy and protecting transactional security for bona fide third parties. Despite criticisms that the introduction of Article 110-2 is unnecessary given the existing provisions, its coexistence with other Civil Code articles does not distort the current legal framework. It also opens a path to actively and flexibly respond to problems frequently arising in an aging society and to newly emerging issues in modern times, such as telemarketing and gaslighting. Therefore, the establishment of Article 110-2 should be viewed positively as a meaningful step toward ensuring the effective protection of self-determination within the modern legal order.

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