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New Approach on Manifestation of Unreal Intention

  • DONG-A LAW REVIEW
  • 2008, (42), pp.171-201
  • Publisher : The Institute for Legal Studies Dong-A University
  • Research Area : Social Science > Law

박찬주 1

1조선대학교

Candidate

ABSTRACT

The writer takes up the position to comprehend the substance of manifestation of intention according to the doctrine of declarant's intent. But Korean Civil Act stipulates the provisions for manifestation of unreal intention(§107), and the effect of manifestation must be determined by interpretation of the corresponding provision. The real problem is why the Act §107 provides declarant's manifestation null and void only when the other party was aware or should have been aware declarant's real intention. The writer's reasoning is as following. : Declarant's assertion of his manifestation of intention null and void is contrary to his previous result-oriented intention and is not permitted by the doctrine of prohibition of contrary act clashing against previous act knowingly done or the doctrine of trust and good faith. The writer also conclude the relation between real intention and result-oriented intention as following. : The meaning of true intention in the term of manifestation of unreal intention is identical with result-oriented intention. Declarant's act done unavoidably but undesirably can be a manifestation of real intention if he did that act with the belief of utmost good judgment. In this respect, real intention differs from declarant's wish or expectation of non-occurrence of undesirable act and the writer does not agree with the precedents that distinguish real intention from result-oriented intention. Only on this ground, we can satisfactorily explain the reason manifestation of intention by duress is not classified under manifestation of unreal intention.

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