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Laws of the Republic of Korea |
1 (Supp. 46)
CIVIL ACT
Act No. 471, Feb. 22, 1958
Amended by Act No. 1237, Dec. 29, 1962
Act No. 1250, Dec. 31, 1962
Act No. 1668, Dec. 31, 1964
Act No. 2200, Jun. 18, 1970
Act No. 3051, Dec. 31, 1977
Act No. 3723, Apr. 10, 1984
Act No. 4199, Jan. 13. 1990
Act No. 5431, Dec. 13, 1997
Act No. 5454, Dec. 13, 1997
Act No. 6544, Dec. 29, 2001
Act No. 6591, Jan. 14, 2002
Act No. 7427, Mar. 31, 2005
Act No. 7428, Mar. 31, 2005
Act No. 7765, Dec. 29, 2005
Act No. 8435, May 17, 2007
Act No. 8720, Dec. 21, 2007
Act No. 9650, May 8, 2009
PART GENERAL PROVISIONS
CHAPTER COMMON PROVISIONS
Article 1 (Source of Law)
If no provisions applicable to certain civil affairs exist in Acts, customary law shall apply, and if no applicable customary law exists, sound reasoning shall apply.
Article 2 (Trust and Good Faith)
(1) The exercise of rights and the performance of duties shall be in accordance with the principle of trust and good faith. (2) No abuse of rights shall be permitted.
CHAPTER PERSONS
SECTION 1 Capacity
Article 3 (Duration of Legal Capacity)
All persons shall be subjects of rights and duties throughout their lives. Article 4 (Majority)
CIVIL ACT
(Supp. 46) 2
Majority is attained upon the completion of twenty full years of age. Article 5 (Capacity of Minor)
(1) A minor shall obtain the consent of his agent by law to perform any juristic act: Provided, That exceptions shall be made in cases where the juristic act concerned is one merely to acquire rights or to be relieved from obligations.
(2) Any act done in violation of the provision of the preceding paragraph is voidable.
Article 6 (Property Permitted to Dispose of)
A minor, in regard to property of which he has been permitted by his agent by law to dispose of within the scope specified by the latter, may dispose of it at his will.
Article 7 (Cancellation of Consent and Permission) Before a minor performs any juristic act, his agent by law may cancel the consent and permission given under the preceding two Articles. Article 8 (Permission on Business)
(1) A minor who has been permitted to carry on a specific business by his agent by law shall have in relation to such specific business the same capacity as a person of full age.
(2) An agent by law may cancel or qualify the permission under the preceding paragraph: Provided, That the cancellation or qualification cannot be set up against a third person acting in good faith.
Article 9 (Adjudication of Quasi-Incompetency)
A feeble minded person or a spendthrift who may bring poverty to himself
or his family, shall be adjudged a quasi-incompetent by
a court on the
application of the person himself, his spouse, any relative within the
fourth degree of relationship, guardian or
a public prosecutor.
Article 10 (Capacity of Quasi-Incompetent Person)
The provisions of Articles 5 through 8 above shall apply mutatis mutandis
to
the quasi-incompetent persons.
Article 11 (Rescission of Adjudication of Quasi-Incompetency)
When the cause for quasi-incompetency has ceased to exist, a court
shall
rescind the adjudication on the application of any of the persons mentioned
in Article 9.
Article 12 (Adjudication of Incompetency)
A person in a habitual condition of mental unsoundness may be adjudged
incompetent by a court on the application of any of the persons
mentioned
in Article 9.
10
3 (Supp. 46)
Article 13 (Capacity of an Incompetent)
Juristic acts done by incompetents are voidable.
Article 14 (Rescission of Adjudication of Incompetency)
The provision of Article 11 shall apply mutatis mutandis to incompetents.
Article 15 (Right of Peremptory Notice of Other Party to Person under
Disability)
(1) The other party to an act performed by a person under disability may,
after the latter has become a person of full capacity,
give a peremptory
notice to the latter requesting a definite answer within a period, which
shall not be less than one month, as
to whether the latter ratifies the
voidable act or not. If the person who was under disability, fails to dispatch
a definite answer
within such period, the act is deemed to have been ratified.
(2) Before the person under disability has become a person of full
capacity,
the notice under the preceding paragraph may be given to his legal
representative, and when his agent by law fails to
dispatch a definite
answer within such period, the act is deemed to have been ratified.
(3) Any act for which special formalities
are required shall be deemed
to have been avoided if a definite answer in compliance with such for-
malities is not dispatched
within the aforesaid period.
Article 16 (Withdrawal and Refusal Rights of Other Party to Person under
Disability)
(1) The other party to a contract concluded by a person under disability
may withdraw his declaration of intention (toward the contract)
until it
has been ratified, unless the other party knew, at the time of formation
of the contract, that the latter was a person
under disability.
(2) The other party to a unilateral act performed by a person under
disability may refuse to comply with the
act until it has been ratified.
(3) The declaration of intention of the withdrawal or refusal under the
preceding two paragraphs
may be forwarded to the person under disability.
Article 17 (Fraudulent Means by Person under Disability)
(1) If a person under
disability has used fraudulent means to induce the
belief that he is a person of full capacity, he cannot avoid his act.
(2) The
above paragraph shall apply to cases where a minor or a quasi-
incompetent person has used fraudulent means to induce the belief
that he
has obtained the consent of his agent by law.
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(Supp. 46) 4
SECTION 2 Domicile
Article 18 (Domicile)
(1) The base and center of living of each person shall be his domicile.
(2) A person may have two or more domiciles at the same
time.
Article 19 (Temporary Domicile)
If the domicile is unknown, the temporary domicile shall be deemed to
be the domicile.
Article 20 (Temporary Domicile)
The temporary domicile in Korea of a person having no domicile in Korea
shall be deemed to be his domicile.
Article 21 (Temporary Residence)
In case a temporary residence is determined concerning a certain act, this
shall be deemed to be the domicile with regard to the
act.
SECTION 3 Absence and Disappearance
Article 22 (Management of Property of Absentee)
(1) If a person has left his domicile or temporary domicile without ap-
pointing an administrator for his property, a court shall,
on the application
of any person interested or a public prosecutor, order such steps necessary
for the management of his property.
The same shall apply when the
authority of an administrator has come to an end during the absence of
his principal.
(2) If the principal subsequently appoints an administrator, the court
shall cancel its order on the application of the principal,
administrator,
any person interested, or of a public prosecutor.
Article 23 (Replacement of Administrator)
In a case where the absentee has appointed an administrator, and it is
unknown whether the absentee is alive or dead, a court may,
on the
application of the administrator, any person interested, or of a public
prosecutor, appoint another administrator in his
stead.
Article 24 (Duties of Administrator)
(1) An administrator appointed by a court shall prepare an inventory of
the property which he is to manage.
10
5 (Supp. 46)
(2) The court may order the administrator appointed by the court to take
such steps necessary for preservation of an absentee s
property.
(3) If it is not known whether an absentee is alive or dead, and an
application has been made by a person interested
or by a public prosecutor,
the court may order the administrator appointed by the absentee to take
the steps under the preceding
two paragraphs.
(4) In case of the preceding three paragraphs, expenses thereof shall be
defrayed out of the property of the absentee.
Article 25 (Authority of Administrator)
If the administrator appointed by the court finds it necessary to perform
functions in excess of the powers specified in Article
118, he shall obtain
the consent of the court. The same shall apply in a case where an ad-
ministrator appointed by the absentee
finds it necessary to perform
functions in excess of the powers fixed by the absentee, and it is unknown
whether the absentee is
alive or dead.
Article 26 (Security by Administrator and Remuneration for Admin-
istrator)
(1) The court may require an administrator appointed by the court to
furnish reasonable security for the management and return of
the property.
(2) The court may award the administrator appointed by the court rea-
sonable remuneration out of the property of
the absentee.
(3) The above two paragraphs shall apply mutatis mutandis to an ad-
ministrator appointed by an absentee in a case
where it is unknown
whether the absentee is alive or dead.
Article 27 (Judicial Declaration of Disappearance)
(1) If it is uncertain for five years whether an absentee is alive or dead,
the court shall, on the application of any person interested or of a public
prosecutor, make a judicial declaration of disappearance.
(2) The provisions of the preceding paragraph shall also be applicable
where the survival or death of a person who was on a battlefield,
aboard
a sunken vessel or a downed aircraft, or encountered any other peril that
might be a cause of death, is not known distinctly
for one year after the
termination of the war, the sinking of the vessel or the crash of the aircraft,
or the end of any other
peril.
(Supp. 46) 6
made is deemed to have died at the expiration of the period mentioned
in the preceding Article.
Article 29 (Annulment of Judicial Declaration of Disappearance)
(1) If it has been proved that a person against whom a judicial
declaration
of disappearance has been made, is alive or dead at a time different from
that specified in the preceding Article,
the court shall, on the application
of the person himself, any person interested, or a public prosecutor, annul
the judicial declaration
of disappearance: Provided, That such annulment
shall not affect the validity of acts done in good faith, after the judicial
declaration
of disappearance and prior to its annulment.
(2) When a judicial declaration of disappearance has been annulled, a
person who has
acquired property by the direct result of the judicial dec-
laration of disappearance shall be liable to return such property only
to
the extent that he is still enriched, in a case where he acquired the
property in good faith. In a case where he acquired the
property in bad
faith, he shall return such property with interest, and if there has been
any damage, he shall pay for the damage.
Article 30 (Simultaneous Death)
In case two or more persons died of the same peril, it is presumed that
they died at the same time.
CHAPTER JURISTIC PERSONS
SECTION 1 General Provisions
Article 31 (Rule to Formation of Juristic Person)
No juristic person can come into existence other than in accordance with
the
provisions of the Acts.
Article 32 (Incorporation of Non-profit-making Juristic Person and Per-
mission thereof)
An association or foundation relating to science, religion, charity, art,
social intercourse, or otherwise relating to enterprises
not engaged for
profit or gain, may be formed as a juristic person subject to the permission
of the competent authorities.
Article 33 (Registration for Incorporation of Juristic Person)
10
7 (Supp. 46)
A juristic person shall come into existence by making registration for
Incorporation at the seat of the principal office of the
juristic person.
Article 34 (Legal Capacity of Juristic Person)
A juristic person shall be a subject of rights and duties, in accordance
with the provisions of Acts, and within the scope of its
objects as de-
termined by the Articles of incorporation.
Article 35 (Capacity of Juristic Person to Assume Responsibility for Un-
lawful Act)
(1) A juristic person shall be liable for any damages done to other persons
by its directors or other representatives in the performance
of their
duties. This liability of a juristic person shall not relieve the directors
or other representatives of their own liabilities
for damages sustained
thereby.
(2) If any damage has been caused to other persons as a result of an
ultra-vires act of a juristic person, those members, directors,
and other
representatives who have supported a resolution for such ultra-vires act,
or have carried it out, shall be joint and
severally liable for the damages
caused thereby.
Article 36 (Domicile of Juristic Person)
The domicile of a juristic person shall be regarded to be located in the
seat of its principal office.
Article 37 (Inspection and Supervision over Business of Juristic Person)
The business of a juristic person shall be inspected and
supervised by
the competent authorities.
Article 38 (Cancellation of Permission for Incorporation of Juristic Person)
In a case where a juristic person operates such business
outside the scope
of its purpose, violates such conditions attached to the permission for its
incorporation, or does acts harming
public interests, the competent au-
thorities may cancel the permission.
Article 39 (Profit-making Juristic Person)
(1) An association which aims at profit-making may be made a juristic
person in accordance with the conditions prescribed for the
formation of
trading companies.
(2) All the provisions concerning business companies shall apply mutatis
mutandis to the incorporated association under the preceding
paragraph.
CIVIL ACT
(Supp. 46) 8
SECTION 2 Incorporation
Article 40 (Articles of Incorporated Association)
The founder of an incorporated association shall draw up Articles of
incorporation
containing the following matters, and shall sign and seal
it:
1. Objective;
2. Name;
3. Seat of Office;
4. Provisions concerning assets;
5. Provisions concerning appointment and removal of directors;
6. Provisions concerning the acquisition and loss of qualification for
membership; and
7. Period for duration or cause of dissolution, if any.
Article 41 (Restriction on Power of Representation of Directors)
No restriction
placed on the power of representation of any director has
effect unless the restriction is stated in the Articles of incorporation.
Article 42 (Alteration in Articles of Incorporated Association)
(1) The Articles of an incorporated association may be altered
only with
the consent of two thirds or more of all the members: Provided, That other
provisions concerning the quorum are stipulated
in the Articles of in-
corporation, such provisions shall apply.
(2) Any alteration in the Articles of incorporation shall not be effective
unless it is permitted by the competent authorities.
Article 43 (Articles of Incorporated Foundation)
The founder of an incorporated foundation shall endow a certain property,
and draw up Articles of incorporation containing the particulars
mentioned
in subparagraphs 1 through 5 of Article 40, and sign and seal it.
Article 44 (Supplement for Articles of Incorporated
Foundation)
If the founder of an incorporated foundation died without determining
the name, seat of office, or method of appointment
and removal of its
directors of the foundation, the court shall, on the application of any person
interested or of a public prosecutor,
determine those.
Article 45 (Alteration in Articles of Incorporated Foundation)
(1) The Articles of an incorporated foundation
may be altered only in a
case where the method of alteration thereof is stipulated in the Articles
10
9 (Supp. 46)
of incorporation.
(2) If it is necessary to alter the articles of incorporation for the purpose
of achieving the objective of an incorporated foundation,
or for the pre-
servation of its property, its name or its seat of office may be altered,
regardless of the provisions of the preceding
paragraph.
(3) Article 42 (2) shall apply mutatis mutandis to the preceding two
paragraphs.
Article 46 (Alteration in Objectives, etc. of Incorporated Foundation)
If it is impossible to achieve the objectives of an incorporated
foundation,
the founder or directors may alter the objectives or other particulars of
the articles of incorporation, taking into
consideration the purposes of
the formation, subject to the permission of the competent authorities.
Article 47 (Application of
Provisions Relating to Gift and Testamentary Gift)
(1) If an incorporated foundation is formed by a disposition inter vivos,
the
provisions relating to gifts shall apply mutatis mutandis.
(2) If an incorporated foundation is formed by a will, the provisions
relating to testamentary gift shall apply mutatis mutandis.
Article 48 (Time of Belonging of Property Given by Endowment)
(1)
In a case where the incorporated foundation is formed through a
disposition inter vivos, the property given by way of endowment
shall
become the property of the juristic person as from the time when the
juristic person is incorporated.
(2) In a case where the incorporated foundation is formed through a will,
the property so given shall be deemed to have vested in
the juristic person
as from the time when the will became effective.
Article 49 (Particulars to be Registered)
(1) When the incorporation of a juristic person is permitted, the juristic
person shall register its incorporation at the seat of
its principal office
within three weeks from the date of the permission.
(2) The particulars to be registered under the preceding
paragraph shall
be as follows:
1. Objective;
2. Name;
3. Office;
4. Date of permission for incorporation;
5. Period of duration or causes of dissolution, if any;
6. Total value of the assets;
7. Method of effecting contributions, if any;
8. Full names and domiciles of directors; and
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(Supp. 46) 10
9. Any restriction in a case where restriction is placed upon the power
of representation of directors.
Article 50 (Registration for Establishment of Branch Office)
(1) When a juristic person establishes a branch office, the establishment
shall be registered within three weeks at the seat of the principal office.
At the seat of the branch office, the particulars under
paragraph (2) of
the preceding Article, shall be registered within the same period. At the
seat of other branch offices, the establishment
shall be registered within
the same period.
(2) In a case where the branch office is newly established within the ju-
risdiction of a register office which exercises jurisdiction
over the seat of
the principal office, or the established branch office, only the establishment
shall be registered within the
period under the preceding paragraph.
Article 51 (Registration for Transfer of Office)
(1) In a case where the juristic person has transferred its office, such
transfer shall be registered at the seat of the former
office within three
weeks, and the particulars mentioned in Article 49 (2) shall be registered
at the seat of the new office within
the same period.
(2) In a case where an office has been transferred from one place to another
within the jurisdiction of the same
register office, only the transfer shall
be registered.
Article 52 (Registration for Alteration)
In a case where any alteration has occurred in any of the particulars
mentioned in Article 49 (2), the registration thereof shall
be made within
three weeks.
Article 52-2 (Registration of Provisional Disposition Such as Suspension
of Exercise of Duties)
Where the exercise of director s duties is suspended, where a provisional
disposition of appointing a proxy for duties is made,
or where the provisional
disposition is altered or cancelled, the registration thereof shall be made
at the registry in the place
where a principal office or branch office is
located.
[This Article Newly Inserted by Act No. 6544, Dec. 29, 2001]
Article 53 (Reckoning of Period for Registration)
If any of the particulars
to be registered in accordance with the provisions
of the preceding three Articles requires the permission of the authorities,
the period for registration shall be computed from the date of the arrival
of the permit in question.
Article 54 (Effect of Registration Other than That for Incorporation and
Public Notice of Particulars Registered)
10
11 (Supp. 46)
(1) Particulars to be registered in this Section other than that for in-
corporation purposes cannot be set up against a third party
until such
particulars are registered.
(2) The court shall immediately give public notice of the particulars registered.
Article 55 (Inventory of Assets and List of Members)
(1) A juristic person shall, at the time of its formation and within three
months of every year, prepare an inventory of assets
and keep the same in
its office. In a case where the special business term is fixed, the inventory
shall be made at the time of
its formation and at the end of the business term.
(2) An incorporated association shall keep a list of members and revise
the
list whenever an alteration takes place in its membership.
Article 56 (Prohibition of Assignment and Inheritance of Membership)
The membership of an incorporated association shall not be assigned nor
inherited.
SECTION 3 Organization
Article 57 (Directors)
A juristic person shall have one or more directors.
Article 58 (Execution of Affairs by Directors)
(1) Directors shall execute the affairs of a juristic person.
(2) In a case where there are two or more directors, the affairs of
a juristic
person shall be decided by a majority of the directors, unless it is otherwise
provided for by the articles of incorporation.
Article 59 (Power of Representation of Directors)
(1) The directors shall each represent the juristic person in all its affairs:
Provided, That they shall not contravene the purport provided for in the
articles of incorporation. An incorporated association
shall also comply
with the resolutions of general meetings of the members.
(2) In regard to the representation of a juristic person,
the provisions
relating to agency shall apply mutatis mutandis.
Article 60 (Requisite for Setting up against Restriction on Power of Rep-
resentation of Director)
No restriction placed on the power of representation of any director can
be set up against a third person unless such restriction
is registered.
Article 60-2 (Authority of Proxy for Duties)
(1) A proxy for duties under Article 52-2 shall not perform the acts not
belonging to the regular affairs of a juristic person,
except as otherwise
prescribed in the order for a provisional disposition: Provided, That the
same shall not apply to the case
where a permission from the court has
been obtained.
CIVIL ACT
(Supp. 46) 12
(2) Even where a proxy for duties has performed any acts which violate
the provisions of paragraph (1), the juristic person shall
be liable to a
bona fide third person.
[This Article Newly Inserted by Act No. 6544, Dec. 29, 2001]
Article 61 (Directors Duties of Care)
Directors shall execute their duties with such care as is required of good
managers.
Article 62 (Appointment of Agent for Directors)
Directors may have other persons act as agents for specified acts only
when such acts are not forbidden by the articles of incorporation
or by
a resolution of the general meeting.
Article 63 (Appointment of Provisional Directors)
If a vacancy has occurred in the post of directors, or there is no director,
and there is a reason to believe that damage will ensue therefrom, the
court shall appoint a provisional director on the application
of any per
son interested, or of a public prosecutor.
Article 64 (Appointment of Special Representative)
Directors shall have no power of representation with respect to matters
in which
the interests of the juristic person and their own interests conflict
with each other. In such cases a special representative shall
be appointed
in accordance with the provisions of the preceding Article.
Article 65 (Neglect of Duties of Director)
In a case where any director neglects his duties, he shall be jointly and
severally liable to the juristic person for the damages.
Article 66 (Auditor)
A juristic person may, by its articles of incorporation or by a resolution
of the general meeting, have auditors.
Article 67 (Duties of Auditor)
The duties of an auditor shall be as follows:
1. To inspect the financial status of the juristic person;
2. To inspect the manner in which its affairs are executed by the directors;
3. To report to a general meeting or to the competent authorities, if any
irregularities are discovered in the financial status or
the execution
of affairs; and
4. To convene a general meeting, if it is necessary to do so for making
the report mentioned in the preceding subparagraph.
Article
68 (Power of General Meeting)
All the affairs of an incorporated association, except for those delegated
to the directors or other officers by the articles of
incorporation, shall
be decided by a resolution of the general meeting.
10
13 (Supp. 46)
Article 69 (Regular General Meeting)
The directors of an incorporated association shall convene a regular general
meeting at least once a year.
Article 70 (Special General Meeting)
(1) The directors of an incorporated association may convene a special
general meeting whenever they deem it necessary to do so.
(2) The directors shall convene a special general meeting, when a demand
stating the purpose of the meeting has been made by one
fifth or more
of the members. This quorum may be increased or decreased by the Articles
of incorporation.
(3) In a case where the directors have not taken necessary procedures
for convocation of a general meeting within two weeks after
the demand
under the preceding paragraph was made, the members who made the
demand may convene the meeting with the permission
of the court.
Article 71 (Convocation of General Meeting)
The convocation of a general meeting shall be done by dispatching notice
at least a week in advance, indicating the object of the
meeting, in a manner
as stipulated by the Articles of incorporation.
Article 72 (Resolutions by General Meeting)
Except as otherwise provided in the Articles of incorporation, resolutions
may be adopted at a general meeting only with regard
to matters of which
advance notice has been given in accordance with the preceding Article.
Article 73 (Vote of Member)
(1) Each member shall have equal vote.
(2) Members may vote in writing or by proxy.
(3) The preceding two paragraphs shall not apply, if it is otherwise provided
in the Articles of incorporation.
Article 74 (Members who Have No Right to Vote)
In a case where a resolution is to be voted on concerning the relations
between the incorporated association and one of its members,
such member
shall have no right to vote.
Article 75 (Method of Resolutions at General Meeting)
(1) Unless otherwise provided in this Act or in the Articles of incor-
poration,
the attendance of a majority of all the members, and the votes
of a majority of the members present, shall be necessary for the
resolutions
of a general meeting.
CIVIL ACT
(Supp. 46) 14
(2) In the case of Article 73 (2), the members concerned shall be deemed
to have attended the meeting.
Article 76 (Minutes of General Meeting)
(1) A minutes for the proceedings of a general meeting shall be maintained.
(2) The minutes shall state the development, outline,
and result of the
proceedings, and the chairman and directors present shall sign and seal
it.
(3) The directors shall keep the minutes at its principal office.
SECTION 4 Dissolution
Article 77 (Causes for Dissolution)
(1) A juristic person shall be dissolved upon the expiration of the period
of its duration, the completion of the undertaking which
forms the object
of the juristic person, or the impossibility of such completion, the happening
of any cause of dissolution specified
in the Articles of incorporation,
bankruptcy, or the annulment of the permission for incorporation.
(2) An incorporated association
shall be dissolved in the case where no
member remains, or by a resolution of a general meeting.
Article 78 (Resolution for Dissolution
of Incorporated Association)
Unless otherwise provided in the Articles of incorporation, an incorporated
association shall not
adopt a resolution for dissolution, except with the
approval of at least three fourths of all the members.
Article 79 (Application
for Bankruptcy)
If a juristic person has become incapable of discharging its obligations
in full, the directors shall immediately file a petition
for bankruptcy.
Article 80 (Reversion of Surplus Assets)
(1) The assets of a juristic person which has been dissolved shall revert
to the persons designated in the Articles of incorporation.
(2) If no person to whom the assets are to be reverted is designated in
the Articles of incorporation, or if the method by which
such person is
to be determined is not specified therein, the directors or the liquidators
may, with the permission of the competent
authorities, dispose of the assets
for the purposes similar to those of the juristic person: Provided, That
in the case of an incorporated
association, a resolution of a general meeting
is required.
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15 (Supp. 46)
(3) Any property which is not disposed of in accordance with the provisions
of the preceding two paragraphs shall revert to the
National Treasury.
Article 81 (Juristic Person in Liquidation)
A juristic person which has been dissolved shall have the rights and duties
only within the scope of liquidating purpose.
Article 82 (Liquidator)
When a juristic person has been dissolved, the directors shall become the
liquidators except in the case of bankruptcy: Provided,
That this shall
not apply, if otherwise prescribed in the Articles of incorporation, or by
the resolution of a general meeting.
Article 83 (Appointment of Liquidator by Court)
If there exists no person to become a liquidator under the preceding Article,
or if there is any possibility that damage may ensue
because of a vacancy
among the liquidators, a court may appoint liquidators on the application
of any person interested, or of
a public prosecutor, or ex officio.
Article 84 (Removal of Liquidators by Court)
Where any grave reason exists, the court may remove a liquidator ex officio,
or on the application of any person interested, or
of a public prosecutor.
Article 85 (Registration for Dissolution)
(1) Except in the case of bankruptcy, liquidators shall effect the registration
of the cause and date of dissolution, their full
names, domiciles, and any
restriction in a case where restriction is placed upon the power of rep-
resentation of the liquidators,
at the seats of the principal and branch
offices within three weeks after their inauguration.
(2) The provisions of Article 52
shall apply mutatis mutandis to the reg-
istration under the preceding paragraph.
Article 86 (Report on Dissolution)
(1) Except in the case of bankruptcy, liquidators shall report to the
competent authorities on the matters under paragraph (1) of
the preceding
Article within three weeks after their inauguration.
(2) Liquidators inaugurated during the course of liquidation
shall report
only their full names and domiciles.
Article 87 (Duties of Liquidators)
(1) The duties of liquidators shall be as follows:
1. Winding up of pending business;
2. Recovery of claims and discharge of obligations; and
CIVIL ACT
(Supp. 46) 16
3. Distribution of surplus assets.
(2) Liquidators may do all acts necessary for performing the duties specified
in the preceding
paragraph.
Article 88 (Public Notice to Obligee)
(1) Liquidators shall, within two months from the day on which they assumed
office, give at least three public notices to obligers
calling upon them to
report their claims within a specified period, which shall not be less than
two months.
(2) A statement shall be included in the public notice under the preceding
paragraph that the claims of obligees who do not report
their claims within
the period will be excluded from liquidation.
(3) The public notice under paragraph (1) shall be given in the same manner
as that of particulars to be registered to the court.
Article 89 (Notice to Present Claims)
Liquidators shall give a separate notice to each obligee known to them
to report his claim. Obligees known to liquidators shall
not be excluded.
Article 90 (Prohibition of Discharge of Obligation within Period to Report
Claims)
Liquidators shall not discharge obligation to obligees within the period
under Article 88 (1): Provided, That the juristic person,
shall not be exempt
from liability for paying damages accruing from the delay.
Article 91 (Special Case in Discharge of Obligation)
(1) The juristic person which is in the course of liquidation may discharge
those obligations which are not yet due.
(2) In the case of the preceding paragraph, in regard to the claims with
conditions, claims with indefinite period of duration,
and other claims whose
amount is not determined, they shall be discharged at the amount as
appraised by an appraiser appointed
by the court.
Article 92 (Claims Excluded from Liquidation)
Obligees excluded from liquidation may claim against such property only
as has not yet been delivered to the persons to whom the
property is to
revert after the liabilities of the juristic person have been fully satisfied.
Article 93 (Bankruptcy in Liquidation)
(1) When it has become clear in the course of liquidation that the assets
of the juristic person are insufficient to fully satisfy
his liabilities, the
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liquidators shall immediately file a petition for bankruptcy and give a
public notice thereof.
(2) The duties of the liquidators shall come to an end when they hand
over the affairs to the bankruptcy trustee.
(3) The provisions of Article 88 (3) shall apply mutatis mutandis to the
public notice under paragraph (1).
Article 94 (Registration and Report on Completion of Liquidation)
When the liquidation has been completed, liquidators shall register
it
within three weeks thereafter, and make a report thereon to the competent
authorities.
Article 95 (Inspection and Supervision of Dissolution and Liquidation)
The dissolution and liquidation of a juristic person shall
be subject to
the inspection and supervision of the court.
Article 96 (Provisions to be Applied Mutatis Mutandis)
The provisions of Articles 58 (2), 59 through 62, 64, 65, and 70 shall
apply
mutatis mutandis to liquidators.
SECTION 5 Penal Provisions
Article 97 (Penal Provisions)
Directors, auditors, or liquidators of a juristic person shall be liable for
a fine for negligence of not more than 5,000,000 won
in any of the following
cases:
1. If they have neglected to effect any of the registrations prescribed in
this Chapter;
2. If they have contravened the provisions of Article 55, or have made
false statements in the inventory of assets or in the list
of the members;
3. If they have obstructed inspection and supervision prescribed in
Articles 37 and 95;
4. If they have made false statements to, or have concealed facts from,
the competent authorities or a general meeting;
5. If they have violated the provisions of Articles 76 and 90;
6. If, in violation of the provisions of Articles 79 and 93, they have neglected
to file a petition for bankruptcy; or
7. If they have neglected to give any of the public notices prescribed
in Articles 88 and 93, or have given a false public notice.
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CHAPTER THINGS
Article 98 (Definition of Things)
Things mentioned in this Act shall mean corporeal things, electricity, and
other natural forces which can be managed.
Article 99 (Immovables and Movables)
(1) Land and things firmly affixed thereto shall be immovables.
(2) All things other than immovables shall be movables.
Article
100 (Principal Thing and Accessory)
(1) If the owner of a thing has attached thereto another thing owned by
him in order to permanently facilitate the use of such thing,
the thing
so attached shall be an accessory.
(2) An accessory shall follow the disposition of the principal thing.
Article 101 (Natural Fruits and Legal Fruits)
(1) Products derived from a thing in conformity with the use for which
the thing is intended shall be natural fruits.
(2) Money and other things accruing as consideration for the use of a
thing shall be legal fruits.
Article 102 (Acquisition of Fruits)
(1) Natural fruits shall belong to the person who has the right to take
them at the time of their severance from the principal thing.
(2) Legal fruits shall accrue in proportion to the number of days during
which the right to acquire them continues to exist.
CHAPTER
JURISTIC ACTS
SECTION 1 General Provisions
Articles 103 (Juristic Acts Contrary to Social Order)
A juristic act which has for its object such matters as are contrary to
good
morals and other social order shall be null and void.
Article 104 (Unfair Juristic Act)
A juristic act which has conspicuously lost fairness through strained cir-
cumstances, rashness, or inexperience of the parties
shall be null and void.
Article 105 (Optional Provisions)
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If the parties to a juristic act have declared an intention which differs
from any provisions of Acts or subordinate statutes, which
are not concerned
with good morals or other social order, such intention shall prevail.
Article 106 (De Facto Custom)
If there is a custom which differs from any provisions of Acts or subordinate
statutes which are not concerned with good morals
or other social order,
and if the intention of the parties to a juristic act is not clear, such custom
shall prevail.
SECTION 2 Declaration of Intention
Article 107 (Declaration of Untrue Intention)
(1) A declaration of intention shall be valid, even if the declarant has
made it with the knowledge that such declaration is different
from his
true intention: Provided, That such declaration of intention shall be void
if the other party was aware, or should have
been aware, of the real
intention of the declarant.
(2) The nullity of a declaration of intention as mentioned in the preceding
paragraph cannot be set up against a third person acting
in good faith.
Article 108 (Fictitious Declaration of Intention in Collusion)
(1) A fictitious declaration of intention made in
collusion with any other
party shall be null and void.
(2) The nullity of a declaration of intention as mentioned in the preceding
paragraph cannot be set up against a third person acting
in good faith.
Article 109 (Declaration of Intention under Mistake)
(1) A declaration of intention may be voidable if made under
a mistake
in regard to any essential elements of the juristic act: Provided, That
if there has been gross negligence on the part
of declarant, he shall not
claim it to be voidable.
(2) The voidance of a declaration of intention as mentioned in the preceding
paragraph cannot be set up against a third person acting
in good faith.
Article 110 (Declaration of Intention by Fraud or Duress)
(1) A declaration of intention made by fraud or duress
may be voidable.
(2) If a third person has been guilty of fraud or duress in respect to a
declaration of intention made to any
other party, such declaration of
intention may be voidable only in a case where the other party was aware,
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or should have been aware, of the fact.
(3) The voidance of a declaration of intention under the preceding two
paragraphs cannot be set up against a third person acting
in good faith.
Article 111 (Time to be Effective of Declaration of Intention)
(1) A declaration of intention made to another party
shall be effective
as from the time when notice thereof has reached him.
(2) The validity of a declaration of intention shall not
be effected, even
if the declarant dies or loses his capacity to act after he has sent the
notice.
Article 112 (Capacity of Receiving Declaration of Intention)
If a party to whom a declaration of intention has been made is a person
under disability at the time when he receives it, the declaration of intention
cannot be set up against him until his agent by
law becomes aware of
the receipt.
Article 113 (Service of Declaration of Intention by Publication)
In a case where the declarant, (without his negligence), is unable
to name
the other party or his whereabouts such declaration may be made by
means of publication under the Civil Procedure Act.
SECTION 3 Agency
Article 114 (Effect of Acts by Agent)
(1) A declaration of intention made by an agent, within the scope of his
authority while disclosing the fact that he is acting for
a principal, shall
be effective directly against the principal.
(2) The provisions of the preceding paragraph shall apply mutatis mutandis
to a declaration of intention made by a third person
to an agent.
Article 115 (Act without Disclosing Agency)
A declaration of intention made by an agent without disclosing that he
is acting for a principal shall be deemed to have been made
on his own
behalf, but the provisions of paragraph (1) of the preceding Article shall
apply mutatis mutandis, if the other party
was aware, or should have
been aware, that it was made on behalf of the principal.
Article 116 (Defective Acts by Agent)
(1) In a case where the validity of a declaration of intention is to be affected
by reason of absence of intention, fraud, duress,
or by reason of knowledge
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or negligent ignorance of certain circumstances, the existence or
nonexistence of such reasons shall be determined on the basis
of the agent.
(2) In a case where an agent has been commissioned to do a specific juristic
act and he has done such act in conformity
with the principal s instructions,
the principal cannot set up the agent s ignorance of any circumstances of
which he himself was
aware. The same shall apply if the principal was
ignorant of such circumstances through his own negligence.
Article 117 (Capacity
to Act of Agent)
An agent needs not be a person of full capacity.
Article 118 (Scope of Agent's Authority)
An agent whose authority is not specified has the authority to do only
the following acts:
1. Acts of preservation; and
2. Acts of making use of, or improving the thing or the right which is
the object of agency, but only in so far as the nature of
such thing
or right is not altered thereby.
Article 119 (Multiple Agency)
In case of two or more agents, each agent shall represent the principal
unless provided otherwise in the Acts or in the delegation
of authority.
Article 120 (Power of Appointment of Subagent by Agent in Fact)
An agent created by a juristic act shall not appoint
a subagent, except
in a case where he has obtained the consent of his principal or an un-
avoidable reason exists.
Article 121 (Responsibility for Appointment of Subagent by Agent in Fact)
(1) If, in the case mentioned in the preceding Article,
the agent has
appointed a subagent, he shall be responsible to the principal in respect
of the appointment and supervision of the
subagent.
(2) In a case where an agent has appointed a subagent as designated
by the principal, he shall incur no responsibility,
unless he knew such
subagent to be unfit or untrustworthy and neglected to notify the principal
thereof or to remove him.
Article 122 (Power of Appointment of Subagent by Agent by Law and
Responsibility thereof)
An agent created by law may, on his own responsibility, appoint a subagent:
Provided, That he shall incur only the responsibility
specified in par-
agraph (1) of the preceding Article, in case an unavoidable reason exists.
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Article 123 (Authority of Subagent)
(1) A subagent shall represent the principal in respect of acts within the
scope of his authority.
(2) A subagent has the same rights and duties as the agent towards the
principal or third persons.
Article 124 (Representation on His Own Behalf, Representation of Both
Parties)
Without the consent of the principal, an agent shall not perform a juristic
act for the principal to which the agent himself is
the other party, or
shall not become agent of both parties to one juristic act: Provided, That
this shall not apply in the performance
of an obligation.
Article 125 (Apparent Representation by Indication of Conferment of
Power of Representation)
A person who has indicated to a third person that he conferred certain
power to another person shall be responsible for juristic
acts done by such
other person towards the third person within the scope of such power:
Provided, That this shall not apply in
a case where the third person was
aware, or should have been aware, that such other person had no power of
representation.
Article 126 (Apparent Representation in Excess of Authority)
If an agent has performed a juristic act in excess of his authority,
and
if a third person had justifiable reason to believe that the agent had
authority to do such an act, the principal shall be
responsible for the
act.
Article 127 (Cause for Lapse of Power of Representation)
The power of representation shall lapse for the following causes:
1. Death of the principal; and
2. Death, adjudication of incompetency, or bankruptcy of the agent.
Article 128 (Lapse of Power of Representation in Fact)
The power
of representation created by a juristic act shall lapse upon
termination of the caused juristic relations in addition to the causes
mentioned in the preceding Article. The same shall apply in a case where
the principal withdraws the delegation of authority before
the juristic re-
lations are terminated.
Article 129 (Apparent Representation after Lapse of Power of Repre-
sentation)
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The lapse of power of representation cannot be set up against a third
person acting in good faith, unless such third person was
negligent in
not knowing such lapse.
Article 130 (Unauthorized Representation)
If a person without power of representation concludes a contract as an
agent of another, such contract shall not be effective against
the principal,
unless it is ratified by the principal.
Article 131 (Right of Peremptory Notice of Other Party)
In the case of a person without power of representation concluding a
contract
as an agent of another, the other party may give peremptory
notice to the principal demanding a definite answer as to whether he
ratifies the contract or not, within a period reasonably fixed by the other
party. If the principal does not send a definite answer
within such period,
he is deemed to have refused to ratify.
Article 132 (Other Party of Ratification or Refusal)
The declaration of intention of a ratification or refusal cannot be set up
against the other party, unless it is made to him: Provided, That this
shall not apply in a case where the other party was aware
of the fact.
Article 133 (Effect of Ratification)
In the absence of any declaration of intention to the contrary, ratification
shall be effective retroactively as from the time the
contract was entered:
Provided, That the right of a third person shall not be prejudiced thereby.
Article 134 (Right of Withdrawal
of Other Party)
A contract made by a person without power of representation may be
withdrawn in respect to the principal or his agent by the other
party,
so long as it has not been ratified by the principal: Provided, That this
shall not apply in a case where the other party
was aware of the fact
that such person had no such power when the contract was entered.
Article 135 (Responsibility of Unauthorized
Agent to Other Party)
(1) If a person who has made a contract as an agent of another can neither
prove his authority nor get the
principal to ratify the contract, he shall
be liable to the other party, at the latter s option, either for the performance
of
the contract or for damages.
(2) The provisions the preceding paragraph shall not apply if the other
party was aware, or should have been aware, that such person
had no
power of representation, or if the person who made the contract as an
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agent had no capacity for entering into such contract.
Article 136 (Unilateral Act and Unauthorized Representation)
The provisions
of the preceding six Articles shall apply to a unilateral
act, only in a case where, at the time the act was done, the other party
either consented to the act being done without proper authority by the
person holding himself out to be an agent, or did not contest
his authority.
The same shall apply to a unilateral act which was done, with his consent,
to a person without power of representation.
SECTION 4 Nullity and Voidance
Article 137 (Partial Nullity of Juristic Act)
In a case where a part of a juristic act is null, the entire part of the juristic
act shall be made null: Provided, That in a case
where it is deemed that
the juristic act would have been done if the null part had not existed,
then the rest of the act shall
not become null.
Article 138 (Conversion of Null Act)
In a case where a null juristic act possesses requirements for another
juristic act, and it is deemed that if the parties had known
the nullity,
they would have intended to do the other juristic act, such a null act
shall have the effect as the other juristic
act.
Article 139 (Ratification of Null Act)
A null juristic act shall not become effective by ratification: Provided,
That if the party has ratified it with the knowledge of
its nullity, he shall
be deemed to have performed a new juristic act.
Article 140 (Person Voiding Juristic Act)
A voidable juristic act may be voided only by a person under disability,
a person who has made a defective declaration of intention,
or the agent
or successor in title of such person.
Article 141 (Effect of Voidance)
A juristic act which has been voided shall be deemed to have been void
from the beginning, but a person under disability shall be
liable to make
reparation only to the extent that he is still enriched by reason of such
act.
Article 142 (Other Party in Voidance)
In a case where the other party to a voidable juristic act is an identified
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person, the voidance shall be effected by declaring intention to the other
party.
Article 143 (Method and Effect of Ratification)
(1) A voidable juristic act may be ratified by the persons mentioned in
Article 140. After the ratification it shall not be voided.
(2) The preceding Article shall apply mutatis mutandis to the preceding
paragraph.
Article 144 (Requirements for Ratification)
(1) Ratification shall not become effective unless it is made after causes
for voidance have ceased to exist.
(2) The provisions of the preceding paragraph shall not apply in a case
where a ratification is made by a representative by law.
Article 145 (Legal Ratification)
If any of the following events takes place with regard to a voidable act
after it has become possible to ratify in accordance with
the provisions
of the preceding Article, the act shall be deemed to have been ratified;
Provided, That this shall not apply where
any objection is reserved.
1. Performance in full or part;
2. Demand for performance;
3. Novation;
4. Furnishing of security;
5. Assignment, in whole or in part, of the rights acquired by the voidable
act; and
6. Compulsory execution.
Article 146 (Lapse of Right of Voidance)
The right to declare an act voidable shall be exercised within three years
from the time when it becomes possible to ratify, or
within ten years from
the time of performing the juristic act.
SECTION 5 Conditions and Time
Article 147 (Effect of Fulfilment of Conditions)
(1) A juristic act subject to a condition precedent shall become effective
upon the fulfilment of the condition.
(2) A juristic act subject to a condition subsequent shall cease to be effective
upon the fulfilment of the condition.
CIVIL ACT
(Supp. 46) 26
(3) If the parties declare an intention that the effect of the fulfilment
of conditions be affected retroactively before the actual
fulfilment, this
intention shall prevail.
Article 148 (Prohibition of Infringement of Conditional Right)
Neither party to a juristic act subject to a condition shall, during
the
pendency of the condition, do anything to impair the benefit which the
other party might derive from such act upon the fulfilment
of the condition.
Article 149 (Disposition, etc. of Conditional Right)
The rights and duties of the parties during the pendency
of a condition
may be disposed of, inherited, preserved or secured in accordance with
the general rules.
Article 150 (Act against Trust and Good Faith as to Condition)
(1) If a party who is to be disadvantaged upon the fulfilment of
a condition
has intentionally obstructed the fulfilment of such condition against
the principles of trust and good faith, the other
party may treat the
condition as having been fulfilled.
(2) If a party who is to be advantaged upon the fulfilment of a condition
has intentionally fulfilled such condition against the
principles of good
faith and trust, the other party may treat the condition as not having been
fulfilled.
Article 151 (Unlawful Condition, Fulfilled Condition)
(1) If a condition is against good morals or other social order, the juristic
act subject to the condition shall be null and void.
(2) If the condition has already been fulfilled at the time of the juristic
act, such juristic act shall be unconditional in the case of a condition
precedent, and null and void in the case of a condition
subsequent.
(3) If the non-fulfilment of the condition was already certain at the time
of the juristic act, such juristic act shall
be unconditional in the case of
a condition subsequent, and null and void in the case of a condition
precedent.
Article 152 (Effect of Arrival of Time)
(1) If a juristic act is subject to a time of commencement, it shall be effective
when such time arrives.
(2) If a juristic act is subject to a time of termination, it shall cease to
be effective when such time arrives.
Article 153 (Benefit of Time and Waiver thereof)
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(1) Time is presumed to be stipulated for the benefit of the obligor.
(2) The benefit of time may be waived, but the interests of
the other party
shall not be prejudiced thereby.
Article 154 (Right Subject to Time and Applicable Provisions)
The provisions of Articles 148 and 149 shall apply mutatis mutandis
to
a juristic act subject to time.
CHAPTER PERIOD
Article 155 (Scope of Application of This Chapter)
The method of computing the period of time shall be governed by the
provisions
of this Chapter, unless it is otherwise provided by Acts or sub-
ordinate statutes by a judicial disposition or a juristic act.
Article 156 (Starting Point of Computing Period)
If a period has been fixed by the hour, minute or second, it shall be
computed from the given moment.
Article 157 (Starting Point of Computing Period)
If a period has been fixed by the day, week, month or year, the first day
of such period shall not be included in the computation:
Provided, That
this shall not apply if the period begins at midnight.
Article 158 (Starting Point of Counting Age)
In counting age, the day on which one was born shall be included.
Article 159 (Maturity Point of Period)
If a period has been fixed by the day, week, month or year, the period
shall mature upon the expiration of the last day of such
period.
Article 160 (Computation according to Calendar)
(1) If a period has been fixed by the week, month or year, it shall be
computed according to the calendar.
(2) If a period does not commence at the beginning of a week, month
or year, such period shall mature on the day in the last week,
month
or year preceding the day corresponding to that which it commenced.
(3) In cases where a period has been fixed by the month
or year, if there
is no corresponding day in the last month, the last day of the month shall
be the day of maturity.
Article 161 (Holidays and Maturity Point of Period)
Where the last day of a period falls on a Saturday or a national holiday,
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(Supp. 46) 28
such period shall mature on the following day.
CHAPTER EXTINCTIVE PRESCRIPTION
Article 162 (Extinctive Prescription of Claims or Property Right)
(1) The extinctive prescription of a claim shall become complete
if not
exercised for a period of ten years.
(2) The extinctive prescription of property rights, other than a claim and
ownership, shall become complete if not exercised for
a period of twenty
years.
Article 163 (Short Extinctive Prescription for Three Years)
The extinctive prescription of claims defined in the following subpara
graphs shall become complete if not exercised for a period of three years:
1. Interest, support fees, salaries, rent, and other claims purporting for
the delivery of money or other things within a time limit
of one year;
2. Claims of medical practitioners, midwives, nurses, and pharmacists,
for medical treatment, professional services, and dispensation
of med-
icines;
3. Claims of contractors, engineers, and persons engaging in planning
or supervising works, for the execution of their works;
4. Claims against attorneys-at-law, patent agents, notaries public, certified
public accountants, and certified judicial scriveners,
for the return of
documents kept in connection with their services;
5. Claims of attorneys-at-law, patent agents, notaries public, certified
public accountants, and certified judicial scriveners, for
their services;
6. Items received in exchange for products and merchandise sold by
producers and merchants; and
7. Claims of artisans and manufacturers for their works.
Article 164 (Short Extinctive Prescription for One Year)
The extinctive
prescription of claims mentioned below shall become
complete if not exercised for a period of one year:
1. The right to claim fees of hotels, restaurants, assembly rooms for hire,
places of lodging and entertainment, refreshment, hire
of rooms, ad-
mission fees, and the price of articles of consumption, as well as for
substituted donation for another person;
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2. Claims of rent for the hire of clothing, bedding, funeral necessaries,
and other movables;
3. Claims of wages of manual workers and public performers and the
price of Articles supplied to them; and
4. Claims of school proprietors, keepers of boarding schools, and teachers,
for the education, clothing, food, and lodging of pupils,
and apprentices.
Article 165 (Extinctive Prescription of Claims Established by Judgment,
etc.)
(1) The period of extinctive prescription of claims established by a
judgment shall be ten years, even in a case where the period
for the
original claim is shorter under the Act.
(2) The preceding paragraph shall also apply to claims established by
bankruptcy proceedings, compromise in court, judicial conciliation
or any
other process having the same effect as a judgment.
(3) The provisions of the preceding two paragraphs shall not apply to
claims which were not yet due at the time when the judgment became
final.
Article 166 (Starting Point of Computing Extinctive Prescription)
(1) Extinctive prescription shall run from the time it becomes
possible
to exercise a certain right.
(2) The extinctive prescription of a claim, purporting to forbear, shall
run from the time of its violation.
Article 167 (Retroactive Effect of Extinctive Prescription)
The effect of extinctive prescription shall be retroactive to the day
on
which it began to run.
Article 168 (Causes Interrupting Extinctive Prescription)
Extinctive prescription shall be interrupted in any of the following cases:
1. Demand;
2. Attachment, provisional attachment or provisional disposition; and
3. Acknowledgment.
Article 169 (Effect of Interruption of Prescription)
The interruption of prescription shall be effective only
between the
parties themselves and their successors in title.
Article 170 (Demand by Judicial Proceedings and Interruption of Pres-
cription)
(1) A demand by way of judicial proceedings shall have no effect of
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(Supp. 46) 30
interrupting prescription, if the judicial action is dismissed, rejected or
withdrawn.
(2) In the case of the preceding paragraph, if a demand by way of judicial
proceedings, intervention in bankruptcy proceedings,
attachment or pro-
visional attachment, or provisional disposition is made within six months,
the prescription shall be deemed
to have been interrupted by the demand
by way of the first judicial proceedings.
Article 171 (Intervention in Bankruptcy Proceedings and Interruption
of Prescription)
Intervention in bankruptcy proceedings shall have no effect of inter-
rupting prescription if those proceedings are cancelled by
a creditor or
if his demand for intervention is dismissed.
Article 172 (Order for Payment and Interruption of Prescription)
An order for payment shall have no effect of interrupting prescription
if
it lapses for the claimant s failure to apply for provisional execution
within the period of time prescribed by law.
Article 173 (Summons for Compromise, Voluntary Appearance, and In-
terruption of Prescription)
A summons for compromise shall have no effect of interrupting pre-
scription, unless an action is brought within one month and the
other
party does not appear or a compromise is not arrived at. The same shall
apply in the case of a voluntary appearance where
a compromise is not
arrived at.
Article 174 (Peremptory Notice and Interruption of Prescription)
A peremptory notice shall have no effect of interrupting prescription
unless a demand by judicial proceedings, intervention in bankruptcy
proceedings, a summons for compromise or a voluntary appearance
for
the same purpose, an attachment, a provisional attachment or a provisional
disposition is taken within six months.
Article 175 (Attachment, Provisional Attachment, Provisional Disposition
and Interruption of Prescription)
An attachment, a provisional attachment, or a provisional disposition,
shall have no effect of interrupting prescription if annulled
on the ap-
plication of the claimant or by reason of non-compliance with any provisions
of Acts.
Article 176 (Attachment, Provisional Attachment, Provisional Disposition
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and Interruption of Prescription)
An attachment, a provisional attachment, or a provisional disposition,
if not effected against the person in whose favour prescription
is running,
shall not have the effect of interrupting prescription until such person
has been notified thereof.
Article 177 (Acknowledgment and Interruption of Prescription)
In order to make an acknowledgement, having the effect of interrupting
prescription, no capacity or authority for disposition in respect of the
rights of the other party is required.
Article 178 (Running of Prescription after Interruption)
(1) In a case where a prescription is interrupted, the period of prescription
passed until the interruption shall not be computed, and the prescription
which was interrupted begins to run anew from the time
when the cause
of such interruption has ceased to exist.
(2) Prescription which was interrupted by a demand by judicial proceedings
begins to run anew from the time when the judgment thereon
becomes
finally binding in accordance with the provisions of the preceding paragraph.
Article 179 (Person under Disability and
Suspension of Prescription)
If a person under disability has been without an agent by law within six
months prior to the maturity
of the period of extinctive prescription, the
prescription shall not become complete against him for a period of six
months from
the time when he becomes a person of full capacity or when
an agent by law assumes office.
Article 180 (Right of Person under Disability against Administrator of
Property, Right between Husband and Wife, and Interruption
of Pre-
scription)
(1) In respect of the rights which a person under disability has against
his father, mother, or his guardian who manages his property,
extinctive
prescription shall not become complete for a period of six months from
the time when he becomes a person of full capacity
or when a succeeding
agent by law assumes office.
(2) In respect of the rights which one spouse has against the other, extinctive
prescription shall not become complete for a period
of six months from
the time of the dissolution of the marital relationship.
Article 181 (Rights on Estate of Inheritance and Interruption
of Pre-
scription)
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In respect of the rights on or against estate of inheritance, extinctive
prescription shall not become complete for a period of
six months from
the time of identification of a successor, appointment of administrator
or adjudication of bankruptcy.
Article 182 (Natural Calamity or Any Other Accidents and Interruption
of Prescription)
In a case where it is impossible to interrupt extinctive prescription
because of a natural calamity or any other accidents, prescription
shall
not become complete for a period of one month from the time when such
obstacle ceases to exist.
Article 183 (Effect of Extinctive Prescription to Accessory Rights)
When the extinctive prescription of a principal right has become
complete,
it shall affect its accessory right.
Article 184 (Waiving of Benefit of Prescription, etc.)
(1) The benefit of extinctive prescription may not be waived in advance.
(2) Although extinctive prescription shall, by a juristic act, not be excluded,
extended or aggravated, it may be shortened or
lessened.
PART REAL RIGHTS
CHAPTER GENERAL PROVISIONS
Article 185 (Kinds of Real Rights)
No real right can be created at will other than ones provided for by law
or customary law.
Article 186 (Effect of Changes in Real Rights over Immovables)
The acquisition, loss of, or any alteration in, a real right by a
juristic
act over an immovable takes effect upon its registration.
Article 187 (Acquisition of Real Rights over Immovables not
Requiring
Registration)
The acquisition of real rights over immovables through inheritance, ex-
propriation, judgment, auction and others stipulated in
provisions of
law shall not require registration: Provided, That the immovable shall
not be disposed of unless it has been registered.
Article 188 (Effect of Changes in Real Rights over Movables, Summary
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33 (Supp. 46)
Assignment)
(1) The assignment of real rights over movables takes effect by delivery
of the Article.
(2) When an assignee possesses a movable, the assignment takes effect
by a mere declaration of such intention by the parties.
Article
189 (Agreement on Possession)
If real rights in movables are to be assigned and the assigner is to continue
possessing the Articles in accordance with a contract
concluded by the
parties, it shall be regarded that the Articles have been delivered to the
assignee.
Article 190 (Assignment of Claim for Return of Object)
In a case where real rights to a movable possessed by a third party are
assigned, if the assigner assigns to the assignee the claim for return of
the movable possessed by the third party, it shall be
regarded that the
movable has been delivered.
Article 191 (Lapse of Real Rights due to Merger)
(1) When the ownership and other real rights over one and the same thing
have become rested in one and the same person, such real
rights shall
lapse: Provided, That this shall not apply if the real rights form the
object of a right of a third party.
(2) The provisions of the preceding paragraph shall apply mutatis
mutandis to the case where a real right other than ownership and
other
rights having such right for its object, has become rested in one and the
same person.
(3) The provisions of the preceding two paragraphs shall not apply to
possessory rights.
CHAPTER POSSESSORY RIGHT
Article 192 (Acquisition and Extinction of Possessory Right)
(1) Anyone who has de facto control over an Article shall have possessory
right to that Article.
(2) Possessory right is lost if the possessor loses de facto control over
the Article: Provided, That this shall not apply if possession
is recovered
in accordance with the provisions of Article 204.
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Article 193 (Transfer of Possessory Right through Succession)
Possessory right shall be transferred to the successor in case of
succession.
Article 194 (Indirect Possession)
Anyone who causes another person to possess an Article through su-
perficies, chonsegwon (right of registered lease on deposit basis),
pledge,
loan for use, lease, bailment or other relations, shall indirectly have a
possessory right over the subject Article.
Article 195 (Possession Assistant)
If a person exercises de facto control over an Article based on instructions
received from another person, through relationship
of household affairs,
business and other similar relations, only the latter person shall be the
possessor.
Article 196 (Assignment of Possessory Right)
(1) The assignment of possessory right shall become effective by the
delivery of the Article in possession.
(2) The provisions of Articles 188 (2), 189, and 190 shall apply mutatis
mutandis to the assignment of possessory right under the
preceding par-
agraph.
Article 197 (State of Possession)
(1) A possessor is presumed to be in possession openly, peaceably, in good
faith, and with the intention of holding as owner.
(2)
Even if a possessor is in good faith, when he fails in an action on
title, he is deemed to have been a possessor in bad faith, from
the time
of the commencement of the action.
Article 198 (Presumption of Continuation of Possession)
If there is proof of possession at two different times, possession is pre-
sumed to have been continuous throughout the intermediate time.
Article 199 (Assertion of Succession of Possession and Effect thereof)
(1) The successor in the chain of title of a possessor may at his option
assert either only his own possession or it together with
that of his pre-
decessor.
(2) In a case where the possession of a predecessor is asserted together
with that of the successor in the chain of title, the latter
shall also
succeed to any defects in the title which the former had.
Article 200 (Presumption of Lawful Exercise of Right)
A possessor
shall be presumed to lawfully hold the right which he exercises
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35 (Supp. 46)
over the Article in possession.
Article 201 (Possessor and Fruits)
(1) A possessor in good faith acquires the fruits of the Article in pos-
session.
(2) A possessor in bad faith is liable to return the fruits, and to make
compensation for the value of fruits which have already
been consumed
by him, have been damaged, or have not been collected through his
negligence.
(3) The provisions of the preceding paragraph shall apply mutatis mu-
tandis to possessors by force or in secret.
Article 202 (Possessor's Liability to Person Entitled to Restoration)
If an Article possessed has been lost or damaged by any cause
for which
the possessor is responsible, a possessor in bad faith shall be liable for
the entire damage, and a possessor in good
faith shall be liable to the
extent of the enrichment he still enjoys. A possessor who has no intention
of holding as owner must
repair the entire damage even though he may
be acting in good faith.
Article 203 (Claim of Possessor for Reimbursement)
(1) When a possessor restores the article in possession, he is entitled
to be
reimbursed by the person demanding restoration, for the cost of
its preservation and other necessary expenses: Provided, That in
the case
where the possessor has acquired the fruits, ordinary necessary expenses
shall be borne by himself.
(2) In regard to the cost of improvement and other necessary expenses
paid on the article in possession, the possessor is, to the
extent that the
increase in value remains, entitled to reimbursement either of the amount
expended or of the amount by which the
value of the article has been
increased, at the option of the person claiming its recovery.
(3) In the case of the preceding paragraph,
the court may, upon the ap-
plication of the person claiming recovery, allow a reasonable time for re-
imbursement.
Article 204 (Recovery of Possession)
(1) If a possessor has been deprived of the possession of his property,
he may demand the return of that which he was deprived as
well as com-
pensation for damages.
(2) No demand under the preceding paragraph may be brought against
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a limited successor in title of a dispossessor, unless such successor in
title was aware of dispossession.
(3) The right of demand under paragraph (1) shall be exercised within
one year from the time of dispossession.
Article 205 (Maintenance of Possession)
(1) If a possessor is disturbed in his possession, he may demand cessation
of the disturbance as well as compensation for damages.
(2) The right of demand under the preceding paragraph shall be exercised
within one year from the time the disturbance cease to
exist.
(3) If the Article possessed has been damaged due to construction works,
the removal of the disturbance shall not be demanded
after one year has
elapsed since the beginning of such works, or after the works were
completed.
Article 206 (Preservation of Possession)
(1) If the possessor feels that his possession may be disturbed, he may
either demand the prevention of such disturbance or demand
security for
damages.
(2) If the possessor feels that his possession may be disturbed by any
construction works, the provisions of paragraph (3) of the
preceding
Article shall apply mutatis mutandis.
Article 207 (Protection of Indirect Possession)
(1) The right of demand under the preceding three Articles may also be
exercised by indirect possessors under the provisions of
Article 194.
(2) If a possessor is deprived of his possession, the indirect possessor
may demand the return of the article in question
to the possessor, and
in a case where the possessor cannot receive the return of the article in
question or he does not want it,
the indirect possessor may demand that
the article be returned to him.
Article 208 (Relations between Possessory Actions and Actions on Title)
(1) Possessory actions and actions on title shall not exclude
each other.
(2) Possessory actions may not be decided upon grounds related to actions
on title.
Article 209 (Self-help)
(1) A possessor may defend, with his own force, his possession against
those acts unjustly depriving him of his rightful possession
or disturbing
it.
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37 (Supp. 46)
(2) If the possessor of an immovable has been deprived of possession
thereof, the possessor may recapture it by evicting the assailant
im-
mediately after the deprivation; and if it is a movable, the possessor may
recapture from the assailant, on the spot or in
pursuit, the article in
question.
Article 210 (Quasi-Possession)
The provisions of this Chapter shall apply mutatis mutandis to cases where
a person exercises a property right de facto.
CHAPTER OWNERSHIP
SECTION 1 Limitation of Ownership
Article 211 (Contents of Ownership)
An owner has the right, within the scope of law, to use, take the profits
of, and dispose of, the article owned.
Article 212 (Scope of Ownership of Land)
Within the scope, where a justifiable profit exists, the ownership of land
extends both above and below its surface.
Article 213 (Claim for Return of Article Owned)
An owner may demand the return of an article from the person in possession
of that article: Provided, That in a case where the possessor
has the right
to possess the article, he may refuse to return it.
Article 214 (Claim for Removal and Prevention of Disturbance
against
Article Owned)
An owner may demand the cessation of disturbance from a person who
disturbs ownership, and may demand either prevention of the disturbance
or security for damages from the person who might disturb ownership.
Article 215 (Partitioned Ownership of Building)
(1) If a building is divided between two or more persons and each owns a
part thereof, those portions of the building and their
appurtenances
that are used in common are presumed to be under their co-ownership.
(2) The expenses for the preservation and other
charges relating to the
portions used in common shall be divided in proportion to the value of
the part owned by each.
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Article 216 (Claim of Use of Adjoining Land)
(1) The owner of land may, to the extent that it is necessary for the
construction or repairs of walls or buildings in or near the
boundary,
demand use of the adjoining land: Provided, That he may not enter the
dwelling house of the neighbor without his consent.
(2) In the case mentioned in the preceding paragraph, if the neighbor
sustains any damages he may claim compensation for it.
Article
217 (Prohibition of Disturbance against Adjoining Land by Soot,
etc.)
(1) The owner of land has a duty to take appropriate measures so that
soot, heat gas, liquid, sound, vibration, and the like may
not harm or
disturb the neighbor s living or use of the adjoining land.
(2) If the situation under the preceding paragraph is appropriate
for the
ordinary use of the adjoining land, the neighbor has the duty of enduring
such a situation.
Article 218 (Right of Installing Water Service Pipes, etc.)
(1) If the installation of necessary water pipes, drainpipes, gas pipes,
electric wires, etc. would be impossible or the cost thereof is excessive,
unless they passed over another person s land, the owner
may pass over
the such land and install them: Provided, That the place and method
of such passage must be so chosen as to cause
the least possible damage
to the another person s land, and the other person shall, upon request,
be compensated for the damage
sustained thereby.
(2) Where circumstances develop which require further alteration in the
installation under the preceding paragraph, the other person
may request
to make changes in the installation. The expenses of such changes in the
installation shall be borne by the owner of
the land.
Article 219 (Right of Passing over Surrounding Land)
(1) If a piece of land has no access to a public road, which is
necessary
for the use of the land, without passing over the surrounding land, and
the owner of the land cannot reach the public
road, or the cost to reach
the pubic road would be excessive, he may pass over the surrounding land
to the public road, and if
necessary he may construct a path. But, the
method and place must be so chosen as to cause the least possible
damage to the surrounding
land.
(2) The person having the right of passage under the preceding paragraph
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39 (Supp. 46)
shall compensate the owner of the land for any damage done to the land
passed over.
Article 220 (Partition, Partial Assignment and Right of Passing over Sur-
rounding Land)
(1) If through the process of partition, a piece of land has lost access
to a public road, the owner of such land may, in order
to reach a public
road, pass over the land partitioned. In such case no compensation is obliged.
(2) The provisions of the preceding
paragraph shall apply mutatis mutandis
to cases where the owner of land assigns part of his land.
Article 221 (Natural Flow of
Water)
(1) The owner of land may not interfere with the natural flow of water
coming from adjoining land.
(2) The owner of higher land may not interfere with the natural flow of
water necessary for and flowing down onto the adjoining
lower land by
diverting more water than is necessary for his reasonable use.
Article 222 (Right of Drainage Works)
When the water course has been obstructed on lower land, the owner of
the higher land may at his own expense construct works necessary
for
its drainage.
Article 223 (Right to Claim Repair, etc. of Structures for Reservoiring
Draining or Drawing Water)
When the owner of land constructs structures for the purpose of res-
ervoiring, draining or drawing water, and if, by the disruption
or ob-
struction of the works, damage has been done, or there is a possibility
of damage to the other s land, the other person
may request the owner
of the land to effect repair, to drain off the water, or to take preventive
measures.
Article 224 (Custom on Expense)
If in the cases mentioned in the preceding two Articles, any custom exists
as to who shall bear the expense, such custom shall prevail.
Article 225 (Duty to Install Structures against Rain Water)
The owner of land shall construct proper structures so that rain water
may not fall from the eaves directly on adjoining land.
Article 226 (Right of Discharging Surplus Water)
(1) For the purpose of draining land which is under water, or of discharging
surplus water for household, agricultural or industrial
uses, the owner
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of a higher land may divert the water to the lower land until it reaches
a public road, public water way or drain.
(2) In the case of the preceding paragraph, the place and the method
must be so chosen as to cause the least possible damage to
the lower
land, and compensation for any damage shall be paid.
Article 227 (Right to Use Structures for Flow of Water in Adjoining
Land)
(1) The owner of land may, for the purpose of discharging water from
his land, use any structures constructed by the owner
of the adjoining
land.
(2) The person using the structures under the preceding paragraph must
bear the expenses of the construction and preservation of
such structures
in proportion to the benefit he derives therefrom.
Article 228 (Claim for Surplus Water)
If an owner of land finds it difficult to obtain the necessary water for
his household or for utilization of his land without incurring
excessive
costs in material or labor, he may request the owner of the adjoining
land to furnish surplus water, after paying compensation.
Article 229 (Alteration in Watercourse)
(1) The owner of a ditch or other watercourse may not alter its course
or width, if the land on the opposite bank belongs to another
person.
(2) If the land on both banks belongs to the owner of a water course,
such owner may alter its course and width: Provided,
That the water shall
be restored to its natural course at the lower exit.
(3) If there exists any custom different from that provided
for in the
preceding two paragraphs, such custom shall prevail.
Article 230 (Right of Constructing and Using Dam)
(1) If there
is any need for the construction of a dam, the owner of a
water course may attach it to the opposite bank: Provided, That he must
pay compensation for any damage caused thereby.
(2) If a part of a water course belongs to the owner of the opposite bank,
he may use the dam; but he must bear the expenses of
the construction
and preservation of the dam in proportion to the benefit he derives
therefrom.
Article 231 (Right of Using Public River)
(1) Those engaged in agriculture and industry on the banks of public
rivers may draw necessary water from the river for use in their
business
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41 (Supp. 46)
as long as they do not disturb the use of water by other persons rightfully
entitled to such use.
(2) Structures necessary for drawing water under the preceding par-
agraph may be constructed.
Article 232 (Protection of Right of Using Water at Lower Part)
In a case where the right to use water at a lower part has been disturbed
by drawing water or structures under the preceding Article, the person
having the right to use the water may demand removal of
the disturbance
as well as compensation for damages sustained thereby.
Article 233 (Succession of Right to Use Water)
The limited successor of the owner of a watercourse, or other structures
utilized for the operation of agriculture and industry,
or the limited
successor of the person profiting from the watercourse or the structures,
shall succeed to the rights and duties
of the former owner or the person
profiting.
Article 234 (Other Customs on Right to Use Water)
If there exists any custom different from those provided for in the pre-
ceding
three Articles, such custom shall prevail.
Article 235 (Right to Use Water for Common Use)
Adjoining neighbors have the right to use the wellspring or water supply
for common use in proportion to their demands as long as
they do not
disturb the other s use of water.
Article 236 (Construction Work and Compensation for Damage due to
Obstruction in Use of Water, Restoration)
(1) If a wellspring or water supply having necessary use or making
necessary profits has been suspended, decreased in water amount,
or is
obstructed in the use due to building or other construction works by other
persons, the person having the right to use the
water may demand
compensation for the damage sustained as a result thereof.
(2) If the construction work, as described in the preceding
paragraph,
causes any obstruction in the use of water for drinking or living the
sufferer may demand restoration of its original
state.
Article 237 (Right of Constructing Boundary Mark or Fence)
(1) The owners of adjoining land may construct a boundary mark
or a
fence at their joint expense.
(2) The expense under the preceding paragraph shall be borne by both
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(Supp. 46) 42
persons in equal proportions: Provided, That the expenses of a survey shall
be apportioned in proportion to the area of the land.
(3) If there exists any custom different from those provided for in the
preceding two paragraphs, such custom shall prevail.
Article
238 (Right of Specially Constructed Fence)
Any of the adjoining neighbors may, at their own expense, construct a
better fence using
better materials, make it higher than ordinary fences,
or may construct a fireproof wall, or other special facilities.
Article
239 (Presumption of Joint Ownership of Boundary Marks, etc.)
Boundary marks, fences, ditches, etc. set on the boundary line are
pre-
sumed to be co-owned by adjoining neighbors. But this shall not apply
if the boundary marks, fences, ditches, etc. are constructed
at the expense
of only one of the adjoining neighbors, or the fence forms part of a building.
Article 240 (Right of Removing Branches
and Roots of Trees)
(1) If the branches of trees on adjoining land extend over the boundary
line, the owner of such trees may be
required to remove the branches.
(2) If the owner does not comply with the request under the preceding
paragraph, the claimant
may remove them.
(3) If the roots of trees on adjoining land extend across the boundary
line, they may be cut away at will.
Article 241 (Prohibition of Digging too Deep on Land)
The land owner shall not dig so deep on his own land so that the ground
of
the adjoining land might be imperiled unless sufficient protective
construction work is done.
Article 242 (Construction near Boundary Line)
(1) If there is no special custom on constructing buildings, a distance
of not less than 0.5 meters must be left between the building
and the
boundary line.
(2) The owner of the adjoining land may request that the person who
has violated the provisions of the preceding paragraph remove
or modify
the building. But if one year has elapsed since the commencement of the
construction work, or if the construction has
been completed, only damages
can be claimed.
Article 243 (Obligation of Establishing Screen)
If a person constructs, at a distance of not more than two meters from
the boundary line, a window or verandah which overlooks the
inside of
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43 (Supp. 46)
another person s house, he shall erect a proper screen.
Article 244 (Limit to Underground Facilities, etc.)
(1) In digging a well
or other underground facilities to store water, sewage
or filth, etc., a distance of not less than two meters must be left from
the boundary line. In digging a pond, ditch, or cellar, a distance of not
less than one half of their depth must be left from the
boundary line.
(2) In the construction work mentioned in the preceding paragraph, ap-
propriate measures must be taken to prevent
the collapse of earth and
sand, or the infiltration of sewage or polluted liquids into adjoining land.
SECTION 2 Acquisition of
Ownership
Article 245 (Period for Acquiring Ownership of Immovables by Possession)
(1) A person who has for twenty years peaceably and openly
held possession
of an immovable with an intention to own it, shall acquire the ownership
by making registration thereof.
(2) A person, who has made registration as the owner of an immovable
and has for ten years peaceably and openly held possession
of an immovable
with the intent to own it, shall acquire the ownership of such immovable
if his possession is in good faith and
without negligence.
Article 246 (Period for Acquiring Ownership of Movables by Possession)
(1) A person who has for ten years peaceably
and openly held possession
of a movable with the intent to own it, shall acquire the ownership
of such a movable.
(2) In a case where the possession under the preceding paragraph was
commenced in good faith and without negligence, ownership shall
be
acquired after five years have elapsed.
Article 247 (Retroactive Effect of Acquisition of Ownership, Grounds of In-
terruption)
(1) The effect of acquisition of ownership under the preceding two Articles
is retroactive to the commencement of possession.
(2)
The provisions on the interruption of extinctive prescription shall
apply mutatis mutandis to the period for acquiring ownership
under the
preceding two Articles.
Article 248 (Acquisitive Prescription of Property Rights other than Own-
ership)
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The provisions of the preceding three Articles shall apply mutatis mutandis
to the acquisition of property rights other than ownership.
Article 249 (bona fide Acquisition)
If a person who peaceably and openly was assigned a movable, had
possession of it in good faith and without negligence, he shall
acquire
its ownership immediately even if the assigner is not a legal owner.
Article 250 (Special Provision on Stolen or Lost Articles)
If the movable mentioned in the preceding Article is a stolen or lost article,
the injured party or loser may demand the return
of the article within
two years from the time when the article was stolen or lost: Provided,
That this shall not apply in a case
where the lost or stolen article is money.
Article 251 (Special Provision on Stolen or Lost Articles)
If the assignee has bought
the stolen or lost Article in good faith at a
sale by auction, in a public market, or from a merchant selling articles
of the same
kind, the injured party or loser may demand the recovery
of the article after he reimburses the assignee for the price paid for
it.
Article 252 (Vesting of Articles without Owners)
(1) A person who possesses, with the intention of owning, a movable
without an owner, obtains its ownership.
(2) Immovables without owners shall be vested in the National Treasury.
(3) Wild animals shall be considered as without an owner.
Wild animals
which were kept in homes shall also be considered to be without on owner
if they are returned to a natural state.
Article 253 (Acquisition of Ownership of Lost Articles)
The ownership of a lost article is acquired by the finder if its owner does
not claim his right within one year after public notice has been given in
accordance with the provisions of the Act.
Article 254 (Acquisition of Ownership of Treasure-Trove)
The ownership of a treasure-trove is acquired by the discoverer if its
owner
does not claim his right within one year after public notice has been given
in accordance with provisions of the Act. But
the ownership of a trea-
sure-trove discovered on the property or among other things belonging
to another person is acquired by
the discoverer and the owner of the land
or the thing in equal shares.
Article 255 (State Ownership of Cultural Heritage)
(1) Things which are important for scientific, artistic, or antiquarian re-
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45 (Supp. 46)
search shall belong to the state, not following the provisions of Article
252 (1) and the preceding two Articles.
(2) In the case of the preceding paragraph, the finder, the discoverer,
and the owner of the land or things where the treasure-trove
was discovered,
may submit a request for proper compensation from the state.
Article 256 (Attachment to Immovable)
The owner of an immovable acquires the ownership of anything affixed
thereto: Provided, That this shall not affect the rights of
another person
who has affixed such item and retained the title thereto.
Article 257 (Attachment between Movables)
If two or more movables belonging to different owners are so united
together that they can no longer be separated without severe
damage,
or cannot be separated without excessive expense, the ownership of the
composite thing belongs to the owner of the principal
movable. If no dis-
tinction of principal and accessory can be made, the owners of such
movables shall own the composite thing
jointly in proportion to the value
of the movables at the time they were united together.
Article 258 (Mixture)
The provision of the preceding Article shall apply mutatis mutandis if
the movables belonging to different owners, are so integrated
as to be
no longer distinguishable from each other.
Article 259 (Specification)
(1) When a person has performed work upon a movable belonging to
another person, the ownership of the article created by the work
shall
belong to the owner of the raw material: Provided, That if the value
arising out of such workmanship considerably exceeds
that of the ma-
terial, the person who has performed the work shall acquire the own-
ership of the entire article created.
(2) If a person who has performed work, has furnished a part of the
material, the price of the part shall add to the value of work
under the
preceding paragraph.
Article 260 (Effect of Annexing)
(1) If the ownership of a movable is lost, in accordance with the provisions
of the preceding four Articles, all other rights which
exist over the movable
shall also be lost.
(2) If the owner of the article, mentioned above, has become the sole owner
CIVIL ACT
(Supp. 46) 46
of the composite item, the integration, or the item created by the work,
then the other rights mentioned in the preceding paragraph
shall still
exist from thence over such item; and if he has become a co-owner thereof,
the other rights shall exist over his share
therein.
Article 261 (Right of Reimbursement due to Annexing)
A person who has sustained a loss by reason of the provisions of
the
preceding five Articles may request compensation based on the grounds
of unjust enrichment.
SECTION 3 Joint Ownership
Article 262 (Co-ownership of Article)
(1) If an article is owned jointly by two or more persons in proportion
to their own shares, the article shall belong to co-ownership.
(2) The shares of the co-owners are presumed to be equal.
Article 263 (Disposition of Share, Use of and Profit from Article Jointly
Owned)
The co-owners are entitled to dispose of their own shares and may make
use of or take the profits from, in proportion to their own
shares, the
whole of the article owned jointly.
Article 264 (Disposition of, Alteration in Articles Jointly Owned)
No co-owner may dispose of or make any alteration in the article
jointly owned
without consent of the other co-owners.
Article 265 (Administration and Preservation of Article Jointly Owned)
All matters relating to the administration of the article
jointly owned
shall be determined by a majority in shares of the co-owners: Provided,
That each co-owner is entitled to do any
act of preservation.
Article 266 (Liability for Article Jointly Owned)
(1) Each co-owner shall pay the expenses of administration
and bear all
other charges relating to the articles jointly owned in proportion to his
share.
(2) If a co-owner fails to meet the obligation mentioned in the preceding
paragraph for a period of one year or more, the other
co-owners may acquire
his share upon payment of a reasonable compensation.
Article 267 (Reversion in case of Renunciation of Shares,
etc.)
If a co-owner renounces his share or dies without a successor, his share
10
47 (Supp. 46)
reverts to the other co-owners in proportion to their shares.
Article 268 (Demand for Partition of Article Jointly Owned)
(1) Each
co-owner may demand a partition of the article jointly owned,
but the co-owners may agree not to partition the article for a period
not
exceeding five years.
(2) Such agreement as mentioned in the preceding paragraph may be
renewed, but its duration cannot exceed five years from the time
of renewal.
(3) The provisions of the preceding two paragraphs shall not apply to
Articles jointly owned under Articles 215 through
239.
Article 269 (Methods of Partition)
(1) If, with regard to the methods of partition, no agreement can be reached
among the co-owners, any co-owner may file an application
for partition
with a court.
(2) If partition of the property itself cannot be effected, or if there is an
apprehension that the property may considerably depreciate
in value as
a result of partition, the court may order a sale thereof by official auction.
Article 270 (Liability for Warranty
due to Partition)
Each co-owner shall, in proportion to his share, bear the same liability
for warranty as that of a seller in
regard to the parts which the other
co-owners have acquired by partition.
Article 271 (Partnership-ownership of Property)
(1) In accordance with the provisions of Acts or contracts, if property
is owned by several persons through a partnership relationship,
the property
shall belong to partnership-ownership. The rights of persons having part-
nership-ownership shall reach the whole
of the property in
partnershipownership.
(2) With regard to partnership-ownership, the following three Articles
shall apply in addition to the provisions of the preceding
paragraph or
contracts.
Article 272 (Disposition, Alteration and Preservation of Property in Part-
nership-ownership)
None of the persons having partnership-ownership of a piece of property
may dispose of or make alterations to the property without
the consent
of the other persons having partnership-ownership: Provided, That each
person is entitled to do any act of preservation.
Article 273 (Disposition of Share of and Prohibition of Partition of
CIVIL ACT
(Supp. 46) 48
Property in Partnership-ownership)
(1) The persons having partnership-ownership of a piece of property shall
not dispose of the shares of the property without the
consent of all persons.
(2) The persons having partnership-ownership of a piece of property shall
not demand partition of the property.
Article 274 (Termination of Partnership-ownership)
(1) Partnership-ownership of property shall terminate by dissolution of
the
partnership or assignment of the property.
(2) With regard to partition of property in partnership-ownership under
the preceding paragraph, the provisions concerning the partition
of
property jointly owned shall apply mutatis mutandis.
Article 275 (Collective Ownership of Property)
(1) If a piece of property is owned collectively by the members of an association
which is not a juristic person, it shall belong
to collective ownership.
(2) With regard to collective ownership, the following two Articles shall
apply subject to Articles of
an association or other covenants.
Article 276 (Administration, Disposition and Use of and Profit from Prop-
erty in Collective
Ownership)
(1) The administration and disposition of property in collective ownership
shall be determined by resolutions from a general meeting
of the members.
(2) Each member is entitled to make use of the property in collective
ownership and to take the profits from it
in accordance with the Articles
of an association or other covenants.
Article 277 (Acquisition and Loss of Rights and Duties concerning Prop-
erty in Collective Ownership)
The rights and duties of members concerning property in collective ownership
shall be acquired or lost by acquiring or losing the
membership therein.
Article 278 (Quasi-joint Ownership)
The provisions of this Section shall apply mutatis mutandis to property
rights other than ownership, except as otherwise provided
for by other
Acts.
CHAPTER SUPERFICIES
Article 279 (Contents of Superficies)
A superficiary is entitled to use the land of another person for the purpose
10
49 (Supp. 46)
of owning buildings, other structures or trees thereon.
Article 280 (Superficies Having Agreed Duration)
(1) If the duration of a superficies is to be determined by a contract, the
period shall not be less than:
1. 30 years if the superficies is for owning buildings made of stone, lime,
brick, or strong buildings similar to the above, or for
owning trees;
2. 15 years in a case where the superficies is for owning buildings other
than those mentioned in the preceding subparagraph; and
3. 5 years in a case where the superficies is for owning structures other
than buildings.
(2) If any period less than that mentioned in the preceding paragraph
has been determined, it shall be extended to that period mentioned
in
the preceding paragraph.
Article 281 (Superficies Having No Agreed Duration)
(1) If the duration of superficies has not been determined by a contract,
the
period shall be the shortest period mentioned in the preceding Article.
(2) If, when the superficies was created, the kind and construction
of
the structure were not determined, the superficies shall be regarded as
the type of building mentioned in subparagraph 2 of
the preceding Article.
Article 282 (Assignment and Lease of Superficies)
A superficiary may assign his right to another person
or may lease the
land within the duration of the superficies.
Article 283 (Right to Demand Renewal and Purchase by Superficiary)
(1) If buildings, other structures, or trees remain, on termination
of the
superficies, the superficiary may demand renewal of the contract.
(2) If the settlor of the superficies does not want to
renew the contract,
the superficiary may ask the settlor of the superficies to purchase the
structures or trees under the preceding
paragraph at a reasonable price.
Article 284 (Renewal and Duration)
In the case where parties are to renew the contract, the duration of the
superficies shall not be less than the shortest period
mentioned in Article
280, commencing from the date of the renewal: Provided, That the parties
can determine the duration of renewal
longer than that of the Article 280.
Article 285 (Duties of Removal, Right to Demand Purchase)
(1) At the termination of a superficies,
the superficiary shall restore the
land to its original condition, removing the buildings, other structures,
CIVIL ACT
(Supp. 46) 50
or trees.
(2) In the case of the preceding paragraph, if the settlor of the superficies
makes a request to purchase the structures or trees,
tendering a reasonable
price therefor, the superficiary may not refuse such request without jus-
tifiable reason.
Article 286 (Claim for Increase or Decrease in Rent)
In a case where the rent is not reasonable, due to changes in the price of
the land or an increase or decrease in taxes or burdens upon the land,
the parties concerned may request an increase or decrease
in the rent.
Article 287 (Claim for Termination of Superficies)
If a superficiary has not paid rent for a period of two years or
more, the
settlor of the superficies may claim termination of the superficies.
Article 288 (Claim for Termination of Superficies
and Notification to
Mortgagee)
If a superficies is the subject matter of a mortgage, or the buildings or
trees on the land are the subject matter of a mortgage,
the claim under
the preceding Article may be effected after a reasonable period has elapsed
from the time when the mortgagees were
so notified.
Article 289 (Compulsory Provisions)
Any contract which is against the provisions of Articles 280 through 287
and is disadvantageous to the superficiary has no effect.
Article 289-2 (Sectional Superficies)
(1) The space on or under the ground may be demarcated into upper or
lower parts and may be the subject matter of the superficies
for owning
a building or other structures. In this case, the use of land may be restricted
so as to exercise such superficies by
means of an act of creation.
(2) Even when a third person has a right to use and take profits from
the land, if he and all persons
who have rights to it, consent to do so,
a sectional superficies as prescribed in paragraph (1) may be established.
In this case,
the third person who has the right to use and take profits
from the land, shall not interfere with the exercise of the superficies.
[This Article Newly Inserted by Act No. 3723, Apr. 10, 1984]
Article 290 (Provisions Applied Mutatis Mutandis)
(1) The provisions
of Articles 213, 214, and 216 through 244 shall apply
mutatis mutandis among superficiaries, or between a superficiary and
the
owner of the adjoining land.
10
51 (Supp. 46)
(2) The provisions of Articles 280 through 289 and paragraph (1) of this
Article shall apply mutatis mutandis to the sectional superficies
under
Article 289-2.
Article 291 (Contents of Servitude)
A person having a servitude is entitled to use the land of another person
for the convenience and benefit of his own land for a
certain purpose.
Article 292 (Appendant Nature)
(1) A servitude is transferred along with the ownership of the dominant
land as appendant thereto and is subject to any rights other
than the
ownership existing over the dominant land, unless it is otherwise provided
for by the act of creation.
(2) A servitude may neither be assigned nor made the subject matter of
any other rights apart from the dominant land.
Article 293 (Co-ownership Relations, Partial Assignment and Indivi-
sibility)
(1) One co-owner of land cannot extinguish as to his own share a servitude
existing for the benefit of the land or a servitude by
which the land is
dominated.
(2) If land is partitioned, or a part thereof is assigned, servitude shall
continue to exist for the benefit of each part of the
dominant land or over
each part of servient land: Provided, That this shall not apply to the other
parts of the land if the servitude
relates only to a part thereof.
Article 294 (Period for Acquiring Servitude)
The provisions of Article 245 shall apply mutatis mutandis only if a
servitude is continuous and apparent.
Article 295 (Acquisition and Indivisibility)
(1) If one co-owner acquires a servitude, the other co-owners also acquire
a servitude.
(2) An interruption of acquisitive prescription of a servitude by pos-
session as against co-owners shall not be effective unless
it is made
against each co-owner who exercises the servitude.
Article 296 (Interruption, Suspension of Extinctive Prescription
and
Indivisibility)
CIVIL ACT
(Supp. 46) 52
If there are two or more co-owners exercising the servitude an inter-
ruption or suspension of extinctive prescription of the servitude
occurring
in favor of one of them shall inure to the benefit of the other co-owners.
Article 297 (Servitude for Water)
(1) If the water on land subject to a right to water is not sufficient to
meet the requirements of both the dominant and the servient
lands, it
shall, according to the demand of each piece of land, first be appropriated
to household uses, and the remainder to other
uses: Provided, That this
shall not apply if it has been otherwise provided for by the act of creation.
(2) If two or more rights
to water have been created over one and the
same servient land, the person having the subsequent right to water may
not interfere
with the use of the water by the person having a prior right
to water.
Article 298 (Obligation of Owner of Servient Land and Succession Thereof)
If the owner of servient land has, by contract, assumed
an obligation to
construct structures, or to effect repairs thereon, at his own expense for
the benefit of a servitude, such obligation
shall devolve on limited su-
ccessors in title of the owner of the servient land.
Article 299 (Relief of Obligation by Surrendering)
The owner of servient land may relieve himself of the obligation mentioned
in the preceding Article by surrendering to the person
entitled to the ser-
vitude the ownership of that portion of the land which is necessary for
the servitude.
Article 300 (Common Use of Structures)
(1) The owner of servient land may use the structures on the servient
land constructed by the person having the servitude for the
benefit of
the servitude, in so far as it does not interfere with the exercise of servitude.
(2) In the case mentioned in the preceding
paragraph, the owner of the
servient land must bear the expense of the construction and preservation
of the structures in proportion
to the benefit which he derives therefrom.
Article 301 (Provisions Applied Mutatis Mutandis)
The provisions of Article 214 shall
apply mutatis mutandis to servitude.
Article 302 (Special Servitude)
In a case where the inhabitants of a certain area, as a collective body,
are entitled to take grass or trees, catch wild animals,
take earth or sand,
rear live stock, or take other profits from the land of the area owned by
10
53 (Supp. 46)
another person, the provisions of this Chapter shall apply mutatis mutandis
subject to the custom of each locality.
CHAPTER CHONSEGWON (RIGHT TO
REGISTERED LEASE ON
DEPOSIT BASIS)
Article 303 (Contents of Chonsegwon)
(1) Any person having chonsegwon is entitled to use it in conformity with
its purposes and to take the profits from it, by paying
the deposit money
and possessing the real property owned by another person. Furthermore,
he is also entitled to obtain the repayment
of deposit money in preference
to persons having the junior right or other creditors, with respect to the
whole real property.
(2) In the case of the preceding paragraph, the owner of the land shall
not lease the land to another person, nor have any other
superficies or
chonsegwon created on it.
Article 306 (Assignment and Lease of Chonsegwon, etc.)
The person having chonsegwon may assign it to another person or provide
it as security; and during the term of chonsegwon he may conclude
CIVIL ACT
(Supp. 46) 54
a contract for chonchonse (sublet to another person) or lease the subject
matter to another person: Provided, That this shall not
apply in cases
where chonchonse, leasing, and assignment are prohibited by the terms
of the contract.
Article 307 (Effect of Assignment of Chonsegwon)
The assignee of chonsegwon has the same rights and duties as those of
the assignor of the chonsegwon towards the settlor of the
chonsegwon.
Article 308 (Responsibility in a case where of Chonchonse, etc.)
In case the subject matter of chonsegwon becomes that
of chonchonse
having chonsegwon who has so leased or contracted for chonchonse shall
be responsible for the damage arising from
an act of God which would
not have arisen if the contract for chonchonse or leases had not been
entered.
Article 309 (Duties of Person Having Chonsegwon of Maintenance and
Repair)
The person having chonsegwon shall maintain the status quo condition
of the subject matter of chonsegwon and shall perform necessary
repairs in
the ordinary course of the management thereof.
Article 310 (Claim of Person Having Chonsegwon for Reimbursement)
(1) If the person having chonsegwon has defrayed expenses for
the purpose
of improving the subject matter of chonsegwon, or other useful expenses,
he may, so long as the increase in value remains,
require reimbursement
from the owner either of the amount defrayed, or the amount by which
its value has increased, at the option
of said owner.
(2) In the case of the preceding paragraph, the court may, upon the
application of the owner, allow him reasonable
time for reimbursement.
Article 311 (Claim of Extinguishment of Chonsegwon)
(1) If a person having chonsegwon does not use or take
profit from the
subject matter of chonsegwon according to the terms applied to the use
thereof, or according to the character of
the subject matter, the settlor
of chonsegwon may claim the extinguishment of chonsegwon.
(2) In the case of the preceding paragraph,
the settlor of chonsegwon may
request the person having chonsegwon to restore the subject matter to
its original condition or may
demand compensation for loss in lieu thereof.
Article 312 (Duration of Chonsegwon)
(1) The duration of chonsegwon shall be for not more than 10 years. If
10
55 (Supp. 46)
the period prescribed in the contract exceeds 10 years, it shall be shor-
tened to 10 years.
(2) If the duration of chonsegwon for a building is fixed for a period less
than one year, it shall be deemed as one year.
(3) The chonsegwon may be renewed. The renewal period shall be not
more than ten years from the date thereof.
(4) When a person who has created chonsegwon, for a building has not
notified the person, having chonsegwon of his refusal to renew
the contract,
or of the intention to the effect that he will not renew if the conditions
thereof are not changed, within one to
six months before the expiration
of the duration of chonsegwon, it shall be considered that a new contract
of chonsegwon is made
under the same conditions as the previous one,
at the expiration of the duration. In this case, the duration of chonsegwon
shall
be deemed not to have been determined.
Article 312-2 (Right to Request Increase or Reduction of Deposit Money)
If the amount of deposit money becomes inappropriate due
to an increase
or reduction of taxes, public imposts, or other charges related to the real
property on which chonsegwon is created,
or a fluctuation of the economic
situation, a party may request an increase or reduction of the amount
for the future: Provided,
That in a case of an increase in amount, it shall
not exceed the base rate as prescribed by Presidential Decree.
[This Article
Newly Inserted by Act No. 3723, Apr. 10, 1984]
Article 313 (Notification of Extinguishment of Contract of Chonsegwon)
If duration
of chonsegwon is not provided in the contract, either party
may notify at any time the other party of his intention to extinguish
chonsegwon, and chonsegwon shall be extinguished after 6 months have
elapsed from the date of receipt by the other party of notification.
Article 314 (Loss by Act of God)
(1) If the whole or part of the subject matter of chonsegwon is destroyed
by an act of God over which the party has no control,
the chonsegwon
over the portion destroyed shall be extinguished.
(2) If, in the case of partial destruction under the preceding
paragraph,
the person having chonsegwon cannot achieve the objective of chonsegwon
with the remaining part, he may notify the settlor
of chonsegwon of his
CIVIL ACT
(Supp. 46) 56
intention to extinguish the entire chonsegwon and may demand the return
of the deposit money.
Article 315 (Responsibility of Person Having Chonsegwon for Compen-
sation for Loss)
(1) If the whole or part of the subject matter of chonsegwon is destroyed
by some cause attributable to the person having chonsegwon,
he is liable
to compensate the settlor of chonsegwon.
(2) In the case of the preceding paragraph, the settlor of chonsegwon
shall have the right to apply the deposit money as compensation
for the
loss, and if there is any surplus, he shall return it to the person having
chonsegwon. If it is insufficient, the settlor
may make a demand for the
balance.
Article 316 (Duty to Restore to Original Condition, Right to Request Purchase)
(1) When chonsegwon is extinguished according to
terms for the duration
of chonsegwon, the person having chonsegwon shall restore the subject
matter thereof to its original condition
and has the right to remove
any things which he attached to the said subject matter. But, if the settlor
of chonsegwon requests
the purchase of the attached things, the person having
chonsegwon may not refuse to sell without justifiable reasons.
(2) In the
case of the preceding paragraph, if the thing has been attached
to the subject matter with the consent of the settlor of chonsegwon
the
person having chonsegwon may request the settlor to purchase the
attached thing. The same shall apply in a case where the attached
thing
has been purchased from the settlor of chonsegwon.
Article 317 (Extinction of Chonsegwon and Concurrent Performance)
When
chonsegwon is extinguished, the settlor of chonsegwon shall receive
from the person having chonsegwon delivery of the subject matter
and
any documents necessary for the cancellation of the registration of chon-
segwon. The settlor shall return the deposit money
to the person having
chonsegwon concurrently.
Article 318 (Right of Person Having Chonsegwon to Request Auction)
If the settlor of chonsegwon delays the return of the deposit
money, the
person having chonsegwon may request an auction of the subject matter
of chonsegwon, in accordance with the Civil Execution
Act.
57 (Supp. 46)
The provisions of Articles 213, 214, and 216 through 244 shall apply
mutatis mutandis between persons having chonsegwon, or between
a
person having chonsegwon and the owner of adjoining land or superficiaries.
CHAPTER RIGHT OF RETENTION
Article 320 (Contents of Right of Retention)
(1) If the possessor of a thing or valuable instruments belonging to another
person has any claim arising, in respect of such property
or instruments
and if payment of the claim is due, he may retain possession of the thing
or instruments until the claim is satisfied.
(2)The provisions of the preceding paragraph shall not apply if the
possession has originated in an unlawful act.
Article 321 (Indivisibility of Right of Retention)
A person having a right of retention may exercise his right over the whole
of
the thing or valuable instruments retained until his claim has been
fully satisfied.
Article 322 (Auction, Summary Application for Satisfaction of Claim)
(1) A person having a right of retention may sell the retained
article at
an auction in satisfaction of his claim.
(2) A person having a right of retention, if he has justifiable reasons,
may request the court to apply the retained article to
the satisfaction
of his claim at the price estimated by an appraiser. In such a case, the
person having a right of retention shall
inform the debtor of it in advance.
Article 323 (Right of Collecting Fruits)
(1) A person having a right of retention may collect the fruits produced
from the retained article and may apply them to the satisfaction
of his
claim in preference to other creditors: Provided, That if the fruits are
not in the form of money they shall be sold at
an auction.
(2) The fruits must first be applied to the payment of interest, the surplus
if any, to the principal.
Article 324 (Duty of Keeping Property with Care of Good Manager)
(1) A person having a right of retention must keep the retained
article
with the care of a good manager.
(2) A person having a right of retention may not, without the consent
CIVIL ACT
(Supp. 46) 58
of the debtor, use or lease the retained article nor pledge it as security:
Provided, That this shall not apply to such use of the
thing as necessary
for its preservation.
(3) If a person having a right retention contravenes the provisions of the
preceding two paragraphs, the debtor may demand the extinction
of the
right of retention.
Article 325 (Right of Demanding Reimbursement)
(1) If a person having a right of retention has defrayed necessary expenses
in respect of the retained article, he may request reimbursement
from
the owner.
(2) If a person having a right of retention has defrayed useful expenses
in respect of the retained article, he may, as long as
an increase in value
remains, request reimbursement either of the amount defrayed or the
amount by which its value has been increased
at the option of the owner:
Provided, That the court may, upon the application by the owner, allow
him reasonable time to make
reimbursement.
Article 326 (Extinctive Prescription of Claim Secured)
The exercise of a right of retention shall not prevent extinctive prescription
from running against the claim.
Article 327 (Furnishing Other Security and Extinction of Right of Re-
tention)
The debtor may demand the extinction of a right of retention on furnishing
reasonable security.
Article 328 (Loss of Possession and Extinction of Right of Retention)
A right of retention shall be extinguished by the loss of
possession.
CHAPTER PLEDGE
SECTION 1 Pledge of Movables
Article 329 (Contents of Pledge of Movables)
A pledgee of movables is entitled to hold possession of the movables which
he has received from the debtor or a third person as
security for his claim,
and to obtain satisfaction of his claim out of the movables in preference
to other creditors.
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59 (Supp. 46)
Article 330 (Delivery of Object of Pledge)
A pledge shall become effective upon the delivery to the creditor of the
object of pledge.
Article 331 (Object of Pledge)
A thing which can not be assigned shall not be the object of pledge.
Article 332 (Ban on Holding Derivative Possession of Thing
Pledged by
Pledger)
A pledgee cannot let the pledger hold possession of the pledged article
on his behalf.
Article 333 (Order of Priority of Several Pledges of Movables)
If several pledges have been created on a movable to secure several
debts,
the order of their priority shall depend upon the date of their creation.
Article 334 (Scope of Claim Secured)
Unless otherwise provided by an agreement, a pledge shall secure the
principal, interest, penalty, expense for enforcement of the
pledge, expense
for preservation of the pledged article, and the damages arising from the
non-fulfilment of the obligation or from
latent defects in the pledged article.
Article 335 (Effect of Retaining)
A pledgee may retain the pledged article until he obtains satisfaction of
his claim prescribed in the preceding Article: Provided,
That this right
cannot be set up against any creditor who has priority to him.
Article 336 (Sub-pledge)
A pledgee may, within his own right, sub-pledge the pledged article on
his own responsibility. In such case, he shall be responsible
even for
damages due to act of God which would not have occurred if the Article
had not been sub-pledged.
Article 337 (Requisites for Setting up Sub-pledge Against Debtors, etc.)
(1) In the case prescribed in the preceding Article, the
sub-pledge cannot
be set up against the debtor, surety, pledger, and their successors in
title unless the debtor has been notified
of such sub-pledge or has given
his consent thereto.
(2) If the debtor has received notice or has given his consent thereto as
prescribed in the preceding paragraph, no payment of debt
made to the
pledgee without the consent of the sub-pledgee can be set up against the
sub-pledgee.
Article 338 (Auction Summary Application for Satisfaction of Claim)
CIVIL ACT
(Supp. 46) 60
(1) A pledgee may sell the pledged article by auction to obtain satisfaction
of his claim.
(2) A pledgee may apply to the court to have the pledged article ap-
propriated to the satisfaction of the debt to the extent of
its value
appraised by an expert, provided there is a justifiable reason for doing
so. In such case, the pledgee must give the
debtor and pledger notice of
the application in advance.
Article 339 (Ban on Forfeited Pledge)
A pledger may not, by a contract effected before the debt becomes due,
agree that the pledgee shall by way of satisfaction of his
claim acquire
the ownership of the pledged article or dispose of it otherwise than in
the manner provided for by Acts.
Article 340 (Satisfaction of Claim out of Other Property than Pledged
Article)
(1) A pledgee may obtain satisfaction of his claim out of other property
of the debtor only in respect to that portion which has
not been satisfied
out of the pledged article.
(2) The provisions of the preceding paragraph shall not apply if other
property is to be apportioned prior to the apportionment
of the pledged
article: Provided, That other creditors may ask the pledgee to deposit
the apportioned amount.
Article 341 (Right to Indemnity of Person Who Pledged One's Property
to Secure Another's Obligation)
If a person who has pledged his own property to secure a debt of another,
discharges the debt or loses the ownership of the pledged
article in con-
sequence of the enforcement of the pledge, he is entitled to be indemnified
by the debtor in accordance with the
provisions relating to surety ob-
ligations.
Article 342 (Exercise of Pledge against Things Other than Pledged Articles)
A pledge may also be exercised against money or other
things which the
pledger is entitled to receive by reason of the loss, damage or expropriation
of the pledged article. In such
case, an attachment must be levied thereon
prior to their payment or delivery.
Article 343 (Provisions Applied Mutatis Mutandis)
The provisions of Articles 249 through 251 and Articles 321 through 325
shall
apply mutatis mutandis to pledges of movables.
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61 (Supp. 46)
Article 344 (Pledges under Other Acts)
The provisions of this Section shall apply mutatis mutandis to pledges
created by the provisions of another Acts.
SECTION 2 Pledge of Rights
Article 345 (Object of Pledge of Rights)
A property right may be the object of a pledge: Provided, That the right
to use and take the profit from the immovable may not be
the object of
a pledge.
Article 346 (Manner of Creating Pledge of Rights)
Unless Otherwise provided by Acts, a pledge of rights must be created
by the
method regarding the transfer of such rights.
Article 347 (Delivery of Documents Evidencing Obligation)
Where a claim is made the
object of a pledge and there exists a document
evidencing such claim, the creation of the pledge shall take effect by the
delivery
to the pledgee of the document.
Article 348 (Pledge against Mortgage Claim and Additional Registration of
Pledge)
Where a claim secured by a mortgage has been made the object of a pledge,
this cannot be effective against the mortgage unless an
additional regis-
tration of the pledge is entered in the registration of the mortgage.
Article 349 (Requisite for Setting up Pledge
for Nominative Claim)
(1) Where a nominative claim has been made the object of a pledge, the
creation of the pledge cannot be set
up against the original debtor or other
third person, unless he has been notified of it by the pledger in accordance
with the provisions
of Article 450 or unless the original debtor has given
his consent thereto.
(2) The provisions of Article 451 shall apply mutatis mutandis to the
preceding paragraph.
Article 350 (Method of Creating Pledge against Debt Payable to Order)
Where a debt payable to order has been made the object of
a pledge, the
creation of the pledge shall take effect by the endorsement of the in-
strument and its delivery to the pledgee.
Article 351 (Method of Creating Pledge against Bearer Instrument)
Where a bearer instrument has been made the object of a pledge,
the
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creation of the pledge shall take effect by the delivery to the pledgee of
the instrument.
Article 352 (Restriction on Disposition of Right by Pledger)
Without the consent of a pledgee, a pledger cannot extinguish a right
under the pledge, or cannot make any changes detrimental to the rights
of the pledgee.
Article 353 (Method of Execution of Claim under Pledge)
(1) A pledgee may directly collect the claim under the pledge.
(2) If the
subject matter of a claim is money, the pledgee may obtain
direct payment of only such portion thereof as corresponds to the amount
of his own claim.
(3) If the claim mentioned in the preceding paragraph has become due
earlier than the pledgee s claim, the pledgee may request the
original
debtor to deposit the amount payable with the Court Depository. In such
case the pledge shall exist over the money so
deposited.
(4) If the object of the claim is a thing other than money, the pledgee
may exercise his pledge over the thing discharged.
Article 354 (Method of Execution of Claim under Pledge)
In addition to the provisions of the preceding Article, a pledgee may
enforce his pledge by the method of execution as provided for in the Civil
Execution Act.
Article 356 (Contents of Mortgage)
A mortgagee is entitled to obtain satisfaction of his claim in preference
to other creditors out of the immovable which has been
furnished by the
debtor or by a third person as security without transferring its possession.
Article 357 (Floating Sum Mortgage)
(1) A mortgage can be created by settling only the maximum amount of
the debt to be secured and reserving the determination of the
debt in the
future. In such case the extinction or transfer of the debt which occurred
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before the debt is determined cannot be effective against the mortgage.
(2) In the case of the preceding paragraph the interest
of the debt shall
be considered to be included in the maximum amount of the debt.
Article 358 (Scope of Effect of Mortgage)
The effect of a mortgage shall extend to all things which are attached
to the immovable that is mortgaged including its accessories:
Provided,
That this shall not apply to cases if otherwise provided by Acts or agreed
in the act of creation.
Article 359 (Effect upon Fruits)
A mortgage shall be effective against the fruits which the mortgager has
obtained or can obtain out of the mortgaged immovable after
an attachment
has been levied on it: Provided, That this cannot be set up against the
third person who has obtained the ownership
of a superficies or chonsegwon
on the mortgaged immovable unless the mortgagee has notified him of
the attachment.
Article 360 (Scope of Claim Secured)
A mortgage shall secure the principal, interest, penalty, damages arising
from the nonperformance of the obligation, and the expense
for the en-
forcement of the mortgage. Where the compensation for damages is delayed,
a mortgage can be exercised only as regards
the payments due in respect
of one year after the lapse of time for the performance of the principal.
Article 361 (Limits on Disposition
of Mortgage)
A mortgage cannot be assigned separately from its secured claim and also
cannot be made the security of another claim.
Article 362 (Supplement of Property Mortgaged)
When the value of the property mortgaged has been conspicuously decreased
by the acts attributable to a mortgager, a mortgagee may
claim for recovery
to the original state or the offer of reasonable security.
Article 363 (Claim of Mortgagee for Auction Bidders)
(1) A mortgagee may sell the mortgaged property by auction to obtain
satisfaction of his claim.
(2) A third person who has obtained the ownership of the mortgaged
property may also bid at the auction.
Article 364 (Payment of Debt by Third Party Purchaser)
A third person who has obtained the ownership of a superficies or chon-
segwon on the mortgaged immovable may make a claim for the extinction
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of the mortgage by payment of the debt to the mortgagee.
Article 365 (Claim for Auction of Building on Mortgaged Land)
Where the
mortgagor has constructed a building on the land after a
mortgage was created over the land, the mortgagee may sell such building
by auction together with the land: Provided, That he has no right to
obtain payment out of the auction proceeds of the building
in preference
to all others.
Article 366 (Legal Superficies)
Where the land and the building on it belong to different persons by reason
of the auction sale of the mortgaged property, the owner
of the land is
deemed to have created a superficies for the owner of the building: Provided,
That in such case the rent shall be
determined by the court on the
application of the party concerned.
Article 367 (Claim of Third Party Purchaser for Reimbursement of Ex-
penses)
If the third party purchaser of the property mortgaged has defrayed
necessary or useful expenses to preserve and improve the property,
he
may obtain reimbursement out of the proceeds of the auction sale of the
property in preference to all others, according to the
provisions of Article
203 (1) and (2).
Article 368 (Joint Mortgages and Dividend of Proceeds thereof, Sub-
rogation of Mortgagee Next in Priority)
(1) Where two or more immovables are mortgaged to secure one claim
and the proceeds of the auction are to be applied simultaneously
to its
satisfaction, the burdens in respect of the obligation shall be divided in
proportion to the proceeds of the auction sale
of each immovable.
(2) If the proceeds of the auction sale of part of the immovables mentioned
in the preceding paragraph are to
be applied, the mortgagee may obtain
full satisfaction of his claim out of the same; in such case the mortgagee
next in priority
may exercise the right of the prior mortgages by subrogation
to the extent of the amount which the latter would have received out
of
other immovables in accordance with the provisions of the preceding par-
agraph.
Article 369 (Appendant Nature)
When the claim secured by a mortgage becomes extinct by completion of
prescription or by any other reason, the mortgage shall also
lapse with it.
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Article 370 (Provisions Applied Mutatis Mutandis)
The provisions of Articles 214, 321, 333, 340, 341 and 342 shall apply
mutatis
mutandis to mortgages.
Article 371 (Superficies and Chonsegwon Mortgaged)
(1) The provisions of this Chapter shall apply mutatis mutandis to the
case
where a superficies or chonsegwon has been mortgaged.
(2) A mortgagor who mortgaged a superficies or chonsegwon cannot take
action
to extinguish them without the consent of the mortgagee.
Article 372 (Mortgages under Other Acts)
The provisions of this Chapter shall apply mutatis mutandis to mortgages
created by the provisions of other Acts.
PART CLAIMS
CHAPTER GENERAL PROVISIONS
SECTION 1 Subject of Claims
Article 373 (Subject of Claim)
Even something the value of which cannot be computed in money, may
be the subject of a claim.
Article 374 (Duty of Obligor to Deliver Specific Thing with Good Manager's
Care)
If the delivery of a specific thing is the subject of a claim, the obligor
is bound to preserve such thing with the care of a good
manager until
it is delivered.
Article 375 (Claim in Species)
(1) Where the subject of a claim is designated in species only, and its
quality cannot be determined by the nature of the juristic
act or by the
intention of the parties, the obligor is bound to perform with a thing of
medium quality.
(2) If in the cases mentioned in the preceding paragraph the obligor has
completed all acts that are necessary for the performance
or has with the
consent of the obligee designated a thing to be performed, such thing
shall thenceforth constitute the subject
matter of the claim.
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Article 376 (Pecuniary Claim)
Where the subject of a claim is to be delivered in one kind of currency,
and the currency has ceased to be legal tender at the time
the claim
becomes due, the obligor is bound to effect payment in another currency
of legal tender.
Article 377 (Pecuniary Claim in Foreign Currency)
(1) Where the subject of a claim is to be delivered in foreign currency,
the
obligor may, at his option, effect payment in any kind of currency
of the country.
(2) When the subject of a claim is to be delivered in one kind of foreign
currency, and the currency has ceased to be legal tender
at the time when
the claim becomes due, payment shall be effected in some other currency
of the country.
Article 378 (Pecuniary Claim in Foreign Currency)
If the amount of a claim is designated in foreign currency, the debtor may
effect
payment in Korean currency at the current rate of exchange at the
place of performance when the delivery is made.
Article 379 (Legal Rate of Interest)
The rate of interest of a claim bearing interest, unless otherwise provided
by other Acts or agreed by the parties, shall be five
percent per annum.
Article 380 (Alternative Claim)
Where the subject of a claim is to be determined according to option from
among two or more acts, unless otherwise provided by other
Acts or agreed
by the parties, the right of option shall vest in the obligor.
Article 381 (Transfer of Right of Option)
(1) Where the period for the exercise of a right of option is specified, and
the party having a right of option fails to exercise
it within the period, the
other party, having determined a reasonable period, may give peremptory
notice to make an option; in
a case where the party having a right of
option fails to do so within the reasonably fixed period, the right of option
shall be
vested in the other party.
(2) Where the period for the exercise of a right of option is not specified,
after the claim has become due, the other party, having
determined a
reasonable period, gives peremptory notice to make an option, and the
party having a right of option fails to do so
within such period, then it
becomes identical with the preceding paragraph.
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Article 382 (Exercise of Right of Option by Either Party)
(1) Where an option is made by the one party, it shall be made by the
declaration of intention to the other party.
(2) The declaration of intention mentioned in the preceding paragraph
cannot be revoked without the consent of the other party.
Article 383 (Exercise of Right of Option by Third Person)
(1) Where an option is made by a third person, it shall be made by the
declaration of intention both to the obligor and to the obligee.
(2) The declaration of intention mentioned in the preceding paragraph
cannot be revoked without the consent of both the obligee and the obligor.
Article 384 (Transfer of Right of Option Vested in Third
Person)
(1) In a case where a third person cannot make an option, the right of
option shall be vested in the obligor.
(2) Where a third person does not make an option, the obligee or the
obligor may notify him to make an option within a reasonably
fixed period,
and if the third person fails to do so within the period, the right of option
shall vest in the obligor.
Article 385 (Specification of Alternative Claim Owing to Impossibility of
Performance)
(1) If, among two or more acts of performance which are to be made under
an option, some of which have either been impossible to
perform in the
beginning or subsequently become impossible to perform, the subject of
the claim shall exist in respect of the remaining
acts.
(2) The provisions of the preceding paragraph shall not apply, if any act
of performance has become impossible by reason
of the negligence of the
party who does not have the right of option.
Article 386 (Retroactive Effect of Option)
The option shall be effective retroactively from the time the obligation
arose: Provided, That the right of a third person may not
be prejudiced
thereby.
SECTION 2 Effect of Claim
Article 387 (Time for Performance and Delay of Performance)
(1) Where a definite time for the performance of a claim is fixed, the
obligor
shall be responsible for delay as from the commencement of such time.
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If an indefinite time for the performance of a claim is fixed, the obligor
shall be responsible for any delay as from the time when
the obligor has
become aware of the arrival of the time for performance.
(2) If a time for the performance of a claim is not fixed,
the obligor shall
be responsible for the delay as from the time when demand for performance
has been made upon him.
Article 388 (Forfeiture of Benefit of Time)
The obligor cannot claim the benefit of time under the following circum-
stances:
1. If the obligor has damaged, diminished or extinguished the security; and
2. If the obligor has failed to perform the obligation of furnishing the
security.
Article 389 (Compulsory Performance of Obligation)
(1) If an obligor does not perform his obligation voluntarily, the obligee
may
apply to a court for compulsory performance thereof: Provided, That
this shall not apply to cases where the nature of an obligation
does not
so permit.
(2) If the obligation mentioned in the preceding paragraph has a juristic
act for its subject, application may be made to a court
for a decision which
shall act as a substitute for a declaration of intention by the obligor; if
it has an act which is not entirely
personal to the obligor for its subject,
application may be made to a court to compel performance by a third
person at the expenses
of the obligor.
(3) Where the obligation has nonfeasance for its subject, and the obligor
has violated it, application may be made to a court to
have that which
has been violated by the obligor removed at the obligor s expense, and
that reasonable precautionary steps be taken
against future repetition.
(4) The provisions of the preceding three paragraphs shall not affect a
demand of compensation for damages.
Article 390 (Non-performance of Obligations and Compensation for Dam-
ages)
If an obligor fails to effect performance in accordance with the tenor and
purport of the obligation, the obligee may claim damages:
Provided, That
this shall not apply to cases where performance has become impossible
and where this is not due to the obligor s
intention or negligence.
Article 391 (Intention or Negligence of Performance Assistant)
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Where an Agent by law for the obligor effects performance in lieu of the
latter or the obligor effects performance through the other
person as an
employee, the intention or negligence of the agent by law or the other
person shall be deemed as that of the obligor.
Article 392 (Compensation for Damages Arising from Delayed Performance)
The obligor shall be responsible for damages during delay
of the per-
formance even where he is not at negligence: Provided, That this shall
not apply to cases where the damage is inevitable
even if he performed
at the time when the time of performance became due.
Article 393 (Scope of Compensation for Damages)
(1) The compensation for damages arising from the non-performance of
an obligation shall be limited to ordinary damages.
(2) The
obligor is responsible for reparation for damages that have arisen
through special circumstances, only if he had foreseen or could
have
foreseen such circumstances.
Article 394 (Method of Compensation for Damages)
Unless otherwise agreed by the parties, the damages shall be recovered
in money.
Article 395 (Performance Delay and Compensatory Damages)
Where the obligor has delayed the performance of an obligation, and the
obligor fails to perform within a reasonably fixed time that the obligee
has given notice, or performance after delay is no longer
profitable for
the obligee, the obligee may refuse to accept performance and claim
damages in lieu of performance.
Article 396 (Contributory Negligence)
If there has been any negligence on the part of the obligee in regard to
the non-performance of the obligation, the court shall
take it into account
in determining the liability for and assessing the amount of the damages.
Article 397 (Special Rules as to
Non-performance of Monetary Debt)
(1) The amount of damages for non-performance of a monetary debt
shall be determined by the legal
rate of interest: Provided, That in a
case where there exists an agreed rate of interest which does not exceed
the limitation provided
by Acts and subordinate statutes, that agreed
rate of interest shall prevail.
(2) With regard to the damages mentioned in the preceding paragraph,
the obligee is not bound to prove the actual damages nor can
the obligor
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set up the absence of negligence as a defense.
Article 398 (Liquidated Damages)
(1) The parties may determine in advance the amount of damages payable
in the event of the non-performance of an obligation.
(2)
Where the amount of damages determined in advance is unduly
excessive, the court may reduce the amount to a more reasonable and
appropriate sum.
(3) The determination in advance of the amount of damages shall not
affect the obligee s demand for performance or rescission of
the contract.
(4) The agreement of a penalty is presumed to be determined in advance
of the amount of damages.
(5) Even in a case where the parties have agreed beforehand that
something other than money shall be applied as compensation for
damages,
the provisions of the preceding paragraphs shall apply mutatis mutandis.
Article 399 (Obligor's Subrogation to Obligee
owing to Compensation for
Damages)
If an obligee has received by way of damages the full value of the thing
or right which forms the subject of the claim, the obligor
shall ipso jure be
subrogated to the position of the obligee in respect of such thing or right.
Article 400 (Mora Creditoris)
If an obligee is unable to accept performance of an obligation or refuses
to accept it, such obligee shall be responsible for the
delay commencing
from the time when the performance has been tendered.
Article 401 (Mora Creditoris and Responsibility of Obligor)
If the obligor has no intention or gross negligence in respect of non-per-
formance, such obligor shall, during the obligee s delay
of acceptance, be
free of all responsibility arising as a result of non-performance.
Article 402 (Obligee's Acceptance Delay and
Responsibility of Obligor)
During a period of delay on the part of the obligee, the obligor is not bound
to pay the interest even
though the obligation is accompanied by the interest.
Article 403 (Mora Creditoris and Responsibility of Obligee)
If the expense
for the custody of the subject-matter or for performance
is increased owing to the delay on the part of the obligee, the amount
of the increased expense shall be deducted from the account of the obligee.
Article 404 (Obligee's Right of Subrogation to Obligor)
(1) An obligee may, in order to preserve his claim, exercise the rights
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belonging to the obligor: Provided, That this shall not apply to such rights
as are strictly personal to the obligor.
(2) Before a claim becomes due, the obligee cannot exercise the rights
mentioned in the preceding paragraph without the court s
permission:
Provided, That this shall not apply to an act of preservation.
Article 405 (Notice as to Exercise of Obligee's Rights
of Subrogation to
Obligor)
(1) If the obligee, according to the provisions of the paragraph (1) of the
preceding Article, has exercised the rights, except
the act of preservation,
he is bound to give notice to the obligor.
(2) After the obligor has received the notice under the preceding paragraph,
even though he has disposed of his rights, this shall
not be so set up
against the obligee.
Article 406 (Obligee's Right of Revocation)
(1) If the obligor has performed any juristic act which has a property
right for its subject, with the knowledge that it would prejudice
the obligee,
the obligee may apply to the court for its revocation and restitution of
its original status: Provided, That this
shall not apply in a case where
a person who has derived a benefit from such act or a subsequent purchaser
was, at the time of
the act or of the purchase, unaware of the fact that
it would prejudice the obligee.
(2) The action mentioned in the preceding paragraph shall be brought
within one year from the time when the obligee became aware
of the
cause for revocation, or within five years from the time when the juristic
act was done.
Article 407 (Effect of Revocation by Obligee)
The revocation and restitution of its original status according to the
provisions of the preceding Article shall take effect for
the benefit of all
obligees.
SECTION 3 Several Obligees and Obligors
Sub-Section 1 General Provisions
Article 408 (Relationship of Divisible Claims)
Where there are several obligees or obligors, they shall, in the absence
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of any other agreement, have rights or assume duties in equal proportions.
Sub-Section 2 Indivisible Claims and Indivisible Obligations
Article 409 (Indivisible Claim)
Where the subject of a claim is indivisible by its nature or by a declaration
of intention by the parties, and there are several
obligees, each obligee
may demand performance on behalf of all the obligees, and the obligor
may effect performance to any obligee
on behalf of all the obligees.
Article 410 (Effect of Facts Arisen to One of Obligees)
(1) Among the obligees having indivisible
claims, an act done by, or any
fact concerning any one of the obligees, except the fact which has an
effect upon all the obligees
according to the preceding Article, shall
have no effect upon the other obligees.
(2) Where a novation or a release has been effected between one of the
obligees having indivisible claims and the obligor, other
obligees who
have received performance of the entire obligation must reimburse the
obligor that which would have been allocated
to such obligee if he had
not lost his right.
Article 411 (Indivisible Obligations and Provisions Applied Mutatis Mu-
tandis)
Where several persons assume an indivisible obligation, the provisions of
Articles 413 through 415, 422, and 424 through 427 as
well as those of
the preceding Article shall apply mutatis mutandis.
Article 412 (Conversion into Divisible Claim and Divisible
Obligation)
Where an indivisible claim or obligation is converted into a divisible one
with respect to the obligees or the obligors,
each obligee may demand
performance only in respect of his own share, and each obligor shall be
liable for the performance only
in respect of the share incumbent upon
himself to perform.
Sub-Section 3 Joint and Several Obligation
Article 413 (Content of Joint and Several Obligation)
If each of the several obligors has the responsibility to perform the entire
obligation, and the performance by one of the obligors discharges the other s
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obligation, the obligation shall be a joint and several obligation.
Article 414 (Demand for Performance against Each of Obligors
Jointly
and Severally Liable)
The obligee may demand performance, in whole or in part of the obligation,
against one of the obligors jointly and severally liable
or all of them
simultaneously or in succession.
Article 415 (Nullity or Voidance in Respect of Obligors)
The ground for nullifying or avoiding a juristic act in regard to one of
the obligors jointly and severally liable, shall not affect the others ob-
ligation.
Article 416 (Absolute Effect of Demand for Performance)
A demand for performance made upon one of the obligors jointly and
severally
liable shall be effective as against the others.
Article 417 (Absolute Effect of Novation)
If a novation has been effected between one of the obligors jointly and
severally liable and the obligee, the claim shall be extinguished
in favor of
all the obligors.
Article 418 (Absolute Effect of Set-off)
(1) Where one of the obligors jointly and severally liable has a counter
claim against the obligee, and the obligor makes a set-off,
the claim shall
be extinguished in favour of all the obligors.
(2) If the obligor who has a counter claim does not make a set-off, the
other obligors can make a set-off only to the extent of
his share of the
obligation.
Article 419 (Absolute Effect of Release)
A release of an obligation given to one of the obligors jointly and severally
liable, shall be effective in favour of the other
obligors jointly and severally
liable only to the extent of his share of the obligation.
Article 420 (Absolute Effect of Merger)
If a merger has taken place as between one of obligors jointly and severally
liable and the obligee, the other obligors jointly
and severally liable
shall also be relieved of their obligation only to the extent of the share
incumbent upon such obligor.
Article 421 (Absolute Effect of Extinctive Prescription)
If extinctive prescription has been completed for one of the obligors
jointly and severally liable, the other obligors jointly and severally liable
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shall also be relieved of their obligation only to the extent of the share
incumbent upon such obligor.
Article 422 (Absolute Effect of Mora Creditoris)
The obligee s acceptance delay against one of the obligors jointly and
severally liable, shall be effective upon the other obligors
jointly and
severally liable.
Article 423 (Principles as to Relativity of Effect)
Except for matters mentioned in the preceding seven Articles, all other
matters
relating to one of the obligors jointly and severally liable shall
not be effective on the other obligors.
Article 424 (Equality of Contribution)
The extent of the share incumbent upon the obligors jointly and severally
liable to contribute, shall be presumed as equal.
Article
425 (Right of Reimbursement of Obligor Who has Performed at
His Own Expense)
(1) If one of the obligors jointly and severally liable has, by performance
of the obligation or otherwise at his own expense, procured
a discharge
for common profit, he is entitled to reimbursement from the other obligors
jointly and severally liable in proportion
to their respective shares.
(2) The right of reimbursement mentioned in the preceding paragraph
shall include legal interest as
from the day of discharge, and the expenses
or other losses which were unavoidable, or other compensation for damages.
Article
426 (Notice as Requisite for Reimbursement)
(1) Where one of the obligors jointly and severally liable has, without
notifying the
other obligors jointly and severally liable, procured a common
discharge by performance or otherwise at his own expense, and one
of
the other obligors had a defense available against the obligee, he may
set it up against such obligor as has done an act for
discharge only to
the extent of the share incumbent upon himself, and if the ground for
defense so set up is a set-off, the claim
which is to be extinguished by
a set-off, shall be transferred to such obligor as has done an act for discharge.
(2) Where one
of the obligors jointly and severally liable fails to notify
the other obligors jointly and severally liable that he has procured
a
common discharge by performance or otherwise at his own expense, and
one of the other obligors jointly and severally liable has
in good faith
effected performance or otherwise procured a discharge for value, he shall
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insist upon the effectiveness of his own act for discharge.
Article 427 (Share Incumbent upon Obligor who is Insolvent)
(1) If
one of the obligors jointly and severally liable has no sufficient
means to make reimbursement, the part which he is unable to pay
shall
be borne by the person demanding reimbursement and the other solvent
obligors in proportion to their respective shares: Provided,
That if the
party demanding reimbursement is at negligence, he cannot demand the
other obligors jointly and severally liable to
bear their proportionate shares.
(2) In the case of the preceding paragraph, if one of the other obligors
who are to bear the part
for reimbursement of the obligor, who is insolvent,
has obtained a release by the obligee from his joint and several liability,
the obligee shall bear the part incumbent upon the obligor.
Sub-Section 4 Surety Obligation
Article 428 (Contents of Surety Obligation)
(1) A surety is liable to perform the obligation upon which the principal
obligor has defaulted.
(2) A suretyship may be made for a future obligation.
Article 429 (Extent of Surety Obligation)
(1) The surety obligation shall include interest on the principal obligation,
penalty, damages, and all other charge incidental
to the principal obligation.
(2) A surety may stipulate in advance the amount of penalty or other
liquidated damages in regard
to his own surety obligation.
Article 430 (Appendant Nature of Surety Obligation)
If the burden of a surety is greater than that
of the principal obligor
either as to its subject or its terms, it shall be reduced to the extent
of the principal obligation.
Article 431 (Requisite as to Surety)
(1) Where an obligor is bound to furnish surety, such surety must be a
person who has full capacity and sufficient means to effect
performance.
(2) If the surety ceases to have sufficient means to effect performance,
the obligee may demand substitution of another
for such surety.
(3) Where the obligee has designated the surety, the provisions of the
preceding two paragraphs shall not be applicable.
Article 432 (Furnishing Other Security)
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The obligor may be released from liability to furnish a surety by furnishing
other reasonable security in lieu thereof.
Article 433 (Surety and Defense of Principal Obligor)
(1) A surety may avail himself of any defense against the obligee which
the
principal obligor has against the obligee.
(2) A waiver of a defense by the principal obligor shall not be effective
as against a surety.
Article 434 (Surety and Right to Set-off of Principal Obligor)
A surety may avail himself of any claim which the principal obligor
has
against the obligee as a set-off against the latter.
Article 435 (Surety and Right to Revocation, etc. of Principal Obligor)
So far as the principal obligor has the right of revocation, rescission or
termination against the obligee, the surety may refuse
to perform the
obligation against the obligee.
Article 436 (Surety as to Voidable Obligation)
Where a surety has guaranteed an obligation which is voidable and of
which he was aware at the time of entering into the suretyship,
and there
exists non-performance or revocation of the principal obligation, he is
presumed to have assumed an independent obligation
of the same tenor
as the principal obligation.
Article 437 (Defense by Surety of Peremptory Notice and Inquiry)
If an obligee has demanded performance of the obligation from the
surety,
upon proving that the principal obligor has sufficient means to effect
performance and that the execution would be easy,
the surety may enter
a plea as a defense that the obligee must demand from the principal obligor
and that he must first levy execution
on the property of the principal
obligor: Provided, That if the surety has assumed an obligation jointly
and severally liable with
the principal obligor, this shall not be apply.
Article 438 (Effect of Laches as to Peremptory Notice or Inquiry)
Notwithstanding
that a defense has been made by a surety in accordance
with the provisions of the preceding Article, and the obligee has, owing
to his laches, been unable to obtain partial or full performance from the
obligor, the surety shall be relieved of his liability
to the extent that the
obligee would have received performance, if he had not been negligent.
Article 439 (Benefit of Division
by Co-sureties)
Even where several sureties have assumed their liabilities for one obligation
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by separate acts, the provisions of Article 408 shall apply.
Article 440 (Effect of Interruption of Prescription against Surety)
An interruption of prescription against the principal obligor shall also be
effective as against the surety.
Article 441 (Right of Reimbursement of Fiduciary Surety)
(1) If a surety who has become such at the request of the principal obligor
has, without negligence on his part, caused the principal obligation to
be extinguished by performance or at his own expense, such
surety shall
have a right to be indemnified by the principal obligor.
(2) The provisions of Article 425 (2) shall apply mutatis
mutandis to the
cases mentioned in the preceding paragraph.
Article 442 (Right of Preliminary Reimbursement of Fiduciary Surety)
(1) A surety who has become such at the request of the principal
obligor
may exercise in advance his right of reimbursement against the principal
obligor in one of the following subparagraphs:
1. When a surety has, without his negligence, had judgment entered
against him ordering performance to the obligee;
2. If the principal obligor has been declared bankrupt, and the obligee
does not participate in the bankrupt estate;
3. If five years have elapsed after the conclusion of the contract of
suretyship, in a case where the time for the performance of
the
obligation is uncertain and even its maximum duration is unascer-
tainable; and
4. If the time for the performance of the obligation has arrived.
(2) In the case of subparagraph 4 of the preceding paragraph, no
time
granted by the obligee to the principal obligor after the conclusion of the
contract of suretyship can be set up against the
surety.
Article 443 (Demand for Discharge by Principal Obligor)
Where a principal obligor indemnifies the surety in accordance
with the
provisions of the preceding Article, he may demand of the surety to discharge
the obligation for him or request of the
surety to furnish security, or he
may relieve himself of his liability of indemnification by making a deposit
of the amount of
indemnification, furnishing security or procuring a dis-
charge of the surety.
Article 444 (Right of Reimbursement of Nonfiduciary Surety)
(1) In a case where a person who has become surety without the request
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of the principal obligor, has performed the obligation or has otherwise,
at his own expense, procured the discharge of the principal
obligor, the
latter is liable to indemnify the surety to the extent that he was enriched
as of the time of discharge.
(2) In a case where a person has become surety against the will of the
principal obligor, has performed the obligation or has otherwise
at his
own expense procured the discharge of the principal obligor, the latter
is liable to indemnify the surety only to the extent
that the latter is still
being enriched.
(3) If, in the preceding paragraph, the principal obligor claims that he
had, prior to the demand for indemnification, a good cause
for set-off
against the obligee, the claim, which would have been extinguished by
such set-off, shall be transferred to the surety.
Article 445 (Notice as Requisite for Reimbursement)
(1) Where a surety has, without notifying the principal obligor, performed
or otherwise procured a discharge of the principal obligation at his own
expense, and the principal obligor had a defense available
against the
obligee, he may set it up against the surety, and in a case where the
defense so set up is a set-off, the claim which
would be extinguished by
the set-off shall be transferred to the surety.
(2) Where a surety has not notified the principal obligor that he had
performed the obligation or otherwise procured at his own
expense a dis-
charge, and the principal obligor has in good faith effected performance to
the obligee or otherwise procured a
discharge for value, the principal
obligor may treat his act of discharge as effective.
Article 446 (Duty of Notice of Discharge
to Surety of Principal Obligor)
Where the principal obligor has not notified the person who has become
a surety at the request
of the principal obligor that he has obtained a
discharge by his own act, and the surety has in good faith effected
performance
to the obligee or otherwise has procured a discharge for value,
the surety may treat his act of discharge as effective.
Article
447 (Right of Reimbursement of Person Who has Become Surety
for One of Obligors Jointly and Severally Liable or of Indivisible Obligation)
A person who has become surety for one of the obligors jointly and severally
liable or of an indivisible obligation is entitled
to be indemnified from
the other obligors only in proportion to their respective shares.
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Article 448 (Right of Reimbursement among Co-sureties)
(1) Where there are several sureties, one of whom has effected performance
in excess of the share incumbent on him, the provisions of Article 444
shall apply mutatis mutandis.
(2) Where the principal obligation is indivisible or each surety has as-
sumed the obligation for which they are jointly and severally
liable to
each other or with the principal obligor, and one of the sureties has effected
performance in excess of the share incumbent
on him, the provisions of
Articles 425 through 427 shall apply mutatis mutandis.
SECTION 4 Assignment of Claim
Article 449 (Assignability Nature of Claim)
(1) A claim may be assigned, except in cases where its nature does not
so permit.
(2) Where the parties have declared a contrary intention, a claim shall
not be assigned: Provided, That such declaration of intention,
cannot be
set up against a third person acting in good faith.
Article 450 (Requisite for Setting up Assignment of Nominative Claim
against Obligor)
(1) The assignment of a nominative claim cannot be set up against the
obligor or any other third person, unless the assigner has
given notice
thereof to obligor or the obligor has consented thereto.
(2) The notice or consent mentioned in the preceding paragraph
cannot
be set up against a third person other than the obligor, unless it is put
in writing with a certified fixed date.
Article 451 (Effect of Consent or Notice)
(1) If the obligor has given his consent as mentioned in the preceding
Article without reservation, he cannot set up against the
assignee any
defense that he could have set up against the assignor: Provided, That
if the obligor has paid anything to the assignor
for the discharge of his
obligation, he may recover it, and if he had incurred a new obligation
to him, he may treat it as if it
had not been incurred.
(2) Where the assignor has merely given notice of the assignment, the
obligor may set up against the assignee
any defense which has arisen
against the assignor prior to the receipt of the notice.
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Article 452 (Notice of Assignment and Estoppel)
(1) If an assignor has given notice of assignment of a claim to the obligor,
even in a case where assignment has not been made or
the assignment
is null and void, an obligor acting in good faith may be set up a defense
which can set up against the assignee,
against the assignor.
(2) The notice mentioned in the preceding paragraph cannot be withdrawn
without the consent of the assignee.
SECTION 5 Assumption of Obligation
Article 453 (Assumption of Obligation by Contract with Obligee)
(1) A third person may assume an obligation by contract entered
into
with the obligee and thereby discharge the obligation for the obligor, except
in a case where its nature does not so permit.
(2) A third person who has no interest in the obligation cannot assume
an obligation against the will of the obligor.
Article 454 (Assumption of Obligation by Contract with Obligor)
(1) Where a third person has taken over a debt by contract entered
with
the obligor, it shall be effective as from the time when the obligee has
given consent thereto.
(2) The other party to whom the obligee s consent or refusal shall have
effect upon, shall be the obligor or a third person.
Article
455 (Peremptory Notice to Confirm of Whether to Consent or not)
(1) In the case of the preceding Article, the third person or the
obligor
may request the obligee to answer whether he will consent or not within
a reasonably fixed period.
(2) If the obligee has not sent a definite answer within such reasonable
period specifying whether to consent or not, it shall be
deemed as a refusal.
Article 456 (Withdrawal or Change of Assumption of Obligation)
The parties may withdraw or change the assumption
of an obligation ac-
cording to a contract between a third person and the obliger by the time
of the obligee s consent.
Article 457 (Retroactive Effect of Assumption of Obligation)
The consent of the assumption of the obligation by the obligee shall,
if
there exists no different declaration of intention, be effective retroactively
as from the time of such assumption: Provided,
That the retroactive effect
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81 (Supp. 46)
may not harm the rights of a third person.
Article 458 (Ground for Defense of Former Obligor)
A person assuming an obligation may set up a defense against the obligee
which
the former obligor could have set up.
Article 459 (Assumption of Obligation and Extinguishment of Suretyship
or Security)
A suretyship for the obligation of the former obligor or the security
furnished by a third person shall be extinguished by virtue
of assumption
of the obligation, unless the surety or the third person has given consent
thereto.
SECTION 6 Extinction of Claim
Sub-Section 1 Performance
Article 460 (Method of Tender of Performance)
Performance must be effected by way of actual tender in strict accordance
with the tenor of the obligation: Provided, That in a
case where the obligee
previously refused its acceptance or where an act of the obligee is required
for the performance of the
obligation, it shall be sufficient to inform the
obligee that all preparations have been made for performance, and give
a peremptory
notice to him of its acceptance.
Article 461 (Effect of Tender of Performance)
A tender of performance shall relieve the obligor from responsibility for
non-performance as from the time of such tender.
Article 462 (Delivery of Specific Thing in its Existing Condition)
If the delivery of a specific thing is the subject of the obligation,
the obligor
must deliver the thing in the condition in which it exists at the time when
the delivery thereof is due.
Article 463 (Delivery of Thing Belonging to Another as Performance of
Obligation)
An obligor who has delivered a thing belonging to another by way of
performance of an obligation cannot demand the recovery of such
thing,
unless he effects a valid performance anew.
Article 464 (Delivery of Thing by its Owner Who has No Capacity to Dispose
of It)
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Where the owner of a thing who has no capacity to dispose of it has delivered
it by way of performance, and then such performance
has been avoided,
he cannot demand the recovery of such thing unless he effects a valid
performance anew.
Article 465 (Consumption or Assignment in Good Faith by Obligee and
Right of Reimbursement)
(1) If, in the cases mentioned in the preceding two Articles, the obligee
has consumed or disposed of in good faith the thing which
he had received
by way of performance, the performance shall be effective.
(2) If, in the cases of the preceding paragraph, the
obligee has been
demanded by a third person to pay damages, he may exercise the right
of reimbursement against the obligor.
Article 466 (Accord and Satisfaction)
Where an obligor has, with the consent of the obligee, done an act of
performance different from, and in substitution for the one
originally in-
tended, such act shall be deemed a valid performance.
Article 467 (Place of Performance)
(1) If the place of performance has not been decided by the nature of
the obligation or the declaration of intention of the parties,
the delivery
of a specific thing must be made at the place where the thing existed
when the obligation arose.
(2) In the cases of the preceding paragraph, performance of the obligation
other than the delivery of a specific thing must be effected
at the present
domicile of the obligee: Provided, That the performance of the obligation
in regard to the business shall be effected
at the present business place
of the obligee.
Article 468 (Performance Prior to Time for Performance)
In the absence of the declaration of special intention by the parties, the
obligor may effect performance even prior to the time when performance
becomes due: Provided, That he must compensate for the damage
of the
other party.
Article 469 (Performance by Third Person)
(1) The performance of an obligation may also be effected by a third
person: Provided, That if its nature does not so permit, or
the parties
have declared a contrary intention, this shall not apply.
(2) A third person who has no interest in the obligation
cannot effect
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83 (Supp. 46)
performance against the will of the obligor.
Article 470 (Performance to Quasi-Possessor of Claim)
A performance made to a quasi-possessor of the claim is effective only
if
it was done in good faith and without negligence.
Article 471 (Performance to Bearer of Receipt)
A performance made to the bearer of a receipt shall be effective even where
he is not authorized to accept performance: Provided,
That this shall not
apply to cases where the person effecting performance was aware or should
have been aware of the fact that
the bearer did not have such authority.
Article 472 (Performance to Unauthorized Person)
Except in the cases mentioned in the preceding two Articles, a performance
made to a person who is not authorized to accept it is
effective only to
the extent that the obligee has been enriched thereby.
Article 473 (Bearing Expenses of Performance)
In the absence of a special agreement, the expenses of performance shall
be borne by the obligor: Provided, That in a case where
the expenses of
performance is increased by changing the obligee s domicile or by his any
other act, the amount of such increase
shall be borne by the obligee.
Article 474 (Claim of Receipt)
A person effecting performance may demand a receipt from the person
accepting the performance.
Article 475 (Claim of Return of Document Evidencing Obligation)
If there exists a document evidencing the obligation, the person
effecting
performance in full may demand the return of such document. This shall
also apply in a case wheres where the obligation
has been extinguished
in full by any cause other than performance.
Article 476 (Designated Appropriation of Performance)
(1) If an obligor owes to the same obligee several obligations whose
subject
is of the same kind, and the tender of performance is insufficient
to discharge them all, the person effecting performance may,
at the time
of performance, designate the obligation to be discharged by appropriating
performance for it.
(2) If the person effecting performance makes no such designation as
mentioned in the preceding paragraph, the person accepting
the per-
formance may at the time of acceptance designate an obligation to be
discharged by appropriation of performance: Provided,
That this shall not
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apply if the person effecting performance immediately objects to such
designation and appropriation.
(3) The appropriation of performance mentioned in the preceding two
paragraphs shall be effected by a declaration of intention made
to the
other party.
Article 477 (Constructive Appropriation of Performance by law)
If the parties have not designated the obligation to be discharged
by ap-
propriation, it shall be done in accordance with the provisions of the
following subparagraphs:
1. If some of the obligations are due and others are not due, it shall be
appropriated for the performance of the obligation which
is due;
2. If all the obligations are due or all are not due, it shall be appropriated
for the performance of the obligation the discharge
of which is most
advantageous to the obligor;
3. If the advantage to the obligor is equal, it shall be appropriated for
the performance of the obligation which first became due
or will become
due; and
4. If the facts mentioned in the preceding two subparagraphs are equal,
it shall be appropriated for the performance of each obligation
in pro-
portion to the amount of each obligation.
Article 478 (Appropriation of Insufficient Performance)
The provisions of the preceding two Articles shall apply mutatis mutandis
to cases where two or more acts of performance are necessary for the
discharge of one obligation, and those acts for performance
which have
been effected are insufficient to satisfy the entire obligation.
Article 479 (Order of Appropriation of Performance
to Expenses, Interest
and Principal Obligation)
(1) If the obligor is to pay expenses and interest of one or more obligations,
and the person effecting performance has effected
insufficient perfor-
mance to satisfy the entire obligation, such performance shall be ap-
propriated in the order of the expenses,
the interest and the principal.
(2) The provisions of Article 477 shall apply mutatis mutandis to the case
mentioned in the preceding
paragraph.
Article 480 (Voluntary Subrogation by Person Who has Performed Ob-
ligation)
(1) A person who has performed an obligation on behalf of the obligor
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may be subrogated to the rights of the obligee with the consent of the
latter, which should be obtained simultaneously with the
performance.
(2) The Articles 450 through 452 shall apply mutatis mutandis to the
case mentioned in the preceding paragraph.
Article 481 (Constructive Subrogation by Act of Person Who has Per-
formed Obligation)
A person who has a legitimate interest to effect performance shall be by
operation of law subrogated to the rights of the obligee
by effecting the
performance.
Article 482 (Effect of Subrogation by Person Who has Performed Obli-
gation, Relations among Subrogators)
(1) A person who has been subrogated to the rights of the obligee in accordance
with the provisions of the preceding two Articles
may exercise the claim
and the right in respect to its security to the extent to which he may
be reimbursed by virtue of his own
right.
(2) The exercise of the right mentioned in the preceding paragraph shall
be subject to the provisions of the following subparagraphs:
1. A surety cannot be subrogated to the rights of the obligee as against
the third person who acquired of the right on an article
which is the
object of chonsegwon or mortgage unless the subrogation has been
entered in advance into the registration of chonsegwon
or the mortgage;
2. A third party purchaser cannot be subrogated to the rights of the
obligee as against a surety;
3. One of the third party purchasers shall be subrogated to the rights
of the obligee as against the other purchasers in proportion
to the
value of each immovable property;
4. The provisions of the preceding subparagraph shall apply mutatis
mutandis to the case where there are several persons who have
furnished
their own property as security for the obligation of another; and
5. As between a person who has furnished his own property as security
for the obligation of another and surety, they shall be subrogated
to
the rights of the obligee in proportion to their numbers: Provided, That
there are several persons who have furnished their
own property as
security for the obligation of another, they shall be subrogated to the
rights of the obligee in respect of the
balance excluding the part incumbent
upon the surety, and in proportion to the value of each property. If,
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in the case mentioned above the property is an immovable, the pro-
visions of subparagraph 1 shall apply mutatis mutandis.
Article
483 (Partial Subrogation)
(1) Where a person has performed a part of the obligation on behalf of
the obligor by subrogation, he may exercise his right concurrently
with
the obligee in proportion to the value of the performance effected by him.
(2) In the case mentioned in the preceding paragraph
the rescission or
termination of contract by reason of non-performance must be done by
the obligee only, and he must reimburse
the person subrogated for the
value of the performance effected together with the interest thereon.
Article 484 (Performance by
Subrogation, Documents Relating to Obli-
gation, and Security)
(1) An obligee who has obtained full satisfaction of the obligation by per-
formance by subrogation must deliver to the subrogee
all the documents
relating to the obligation and the Article held in possession as security.
(2) Where performance by subrogation
has taken place in respect to a
part of the obligation, the obligee must enter the fact of subrogation in
the documents relating
to the obligation, and must allow the subrogee
to supervise the preservation of the Article held in his possession as security.
Article 485 (Loss or Diminution of Security by Obligee and Discharge of
Person Entitled to Constructive Subrogation)
Where there is a person entitled to the rights of subrogation in accordance
with the provisions of Article 481, and the security
is lost or diminished
by the obligee s intention or negligence, such person shall be relieved of
his liability in so far as it
has become impossible for him to be reimbursed
by reason of loss or diminution.
Article 486 (Extinguishment of Obligation Otherwise than by Means of
Performance and Subrogation)
The provisions of the preceding six Articles shall apply mutatis mutandis
to the case where a third person has made the obligor
s obligation ex-
tinguished by the deposit or at his own expenses.
Sub-Section 2 Deposit
Article 487 (Requisite and Effect of Deposit for Performance)
If the obligee refuses to accept performance or is unable to accept
it, the
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person effecting performance may relieve himself of his obligation by de-
positing the subject matter of performance for the obligee.
The same shall
apply where the obligee cannot be ascertained without any negligence
on the part of the person effecting performance.
Article 488 (Method of Deposit)
(1) The deposit must be made with the Deposit Office in the place for
the performance of the obligation.
(2) If there are no special provisions of Acts in respect of the Deposit
Office, the court must, on the application of the person
effecting performance,
designate a Deposit Office and appoint a custodian of the deposited article.
(3) The depositor must, without
delay, give notice of the deposit to the
obligee.
Article 489 (Recovery of Deposited Article)
(1) Until the obligee has given his consent to the deposit or has notified
the Deposit Office of the receipt of the deposited article
or a judgment
declaring the deposit effective has become final and conclusive, the
depositor may recover the deposited article
and, in such case, the deposit
is deemed not to have been made.
(2) The provisions of the preceding paragraph shall not apply where a
pledge or a mortgage has been extinguished by making a deposit.
Article 490 (Deposit of Proceeds)
If the subject matter of performance is unfit for deposit, or there is any
danger of its perishing or being damaged, or excessive
expense is required
for deposit, the person effecting performance may, with the permission
of the court, sell the subject matter
by official auction or for value at
the market price and deposit the proceeds.
Article 491 (Acceptance of Deposited Article and Performance of Reciprocal
Obligations)
Where the obligor is to effect performance concurrently with the counter
performance of the obligee, the obligee cannot take delivery
of the deposited
article unless he effects his performance.
Sub-Section 3 Set-off
Article 492 (Requisite for Set-off)
(1) If two persons are bound to each other by obligations whose subject
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is of the same kind and both of which have become due, each obligor may
make a set-off to the extent of the amount corresponding
to that of his
obligation: Provided, That this shall not apply where the nature of the
obligations does not so permit.
(2) The provisions of the preceding paragraph shall not apply to cases
where the parties have declared an intention to the contrary:
Provided,
That such declaration of intention cannot be so set up against a third
person acting in good faith.
Article 493 (Method and Effect of Set-off)
(1) A set-off be effected by means of a declaration of intention to the
other party. No condition may be attached, nor a time be
fixed, to such
declaration of intention.
(2) The declaration of intention for a set-off shall be deemed to extinguish
the obligation to the extent of the same amount when
each obligation is
eligible for a set-off.
Article 494 (Set-off of Obligations Which Are to be Performed at Different
Places)
A set-off may be effected even where each obligation is to be performed
at different places: Provided, That the party who effects
the set-off must
compensate the other party for any damages which have arisen therefrom.
Article 495 (Set-off by Claim with Completed
Extinctive Prescription)
A claim with completed extinctive prescription may be used for a set-off if
it had been able to be used
therefor prior to the completion of prescription.
Article 496 (Prohibition of Set-off against Obligation Arisen from In-
tentional
Unlawful Act)
Where the obligation has arisen from an intentional unlawful act, the
obligor cannot avail himself of a set-off against the obligee.
Article 497 (Prohibition of Set-off against Obligation of Which Attach-
ment is Prohibited)
If the claim is one of which an attachment cannot be effected, the obligor
may not set up against the obligee any defense of set-off.
Article 498 (Prohibition of Set-off against Obligation under Garnishment
Order)
A third obligor under garnishment order may not set up against his obligee
who requested such order any defense of set-off subsequently
acquired
by him.
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Article 499 (Provisions to be Applied Mutatis Mutandis)
The provisions of Articles 476 through 479 shall apply mutatis mutandis
to a set-off.
Sub-Section 4 Novation
Article 500 (Requisite for and Effect of Novation)
If the parties have entered into a contract by which the essential elements
of the obligation are modified, such obligation shall be extinguished by
novation.
Article 501 (Novation by Change of Obligor)
A novation by change of an obligor may be effected by a contract between
the obligee and the new obligor: Provided, That it shall
not be effected
against the intention of the original obligor.
Article 502 (Novation by Change of Obligee)
A novation by change of an obligee cannot be set up against a third person,
unless it is done by a document with a certified fixed
date.
Article 503 (Novation Changing Obligee and Effect of Consent of Obligor)
The provisions of Article 451 (1) shall apply mutatis
mutandis to a
novation by change of an obligee.
Article 504 (Case of Non-extinguishment of Original Obligation)
If the new obligation arisen from a novation does not come into
existence
or has been avoided by reason of illegality of its cause or of any circum-
stance of which the parties were not aware,
the original obligation shall
not be extinguished.
Article 505 (Transfer to New Obligation of Security)
The parties to a novation may transfer the security for the original
obligation
to that of the new obligation, within the limit of its objective:
Provided, That if the security has been furnished by a third person,
his
consent must be obtained.
Sub-Section 5 Release
Article 506 (Requisite for and Effect of Release)
If the obligee declares to the obligor an intention to release the obligor
from
the obligation, such obligation shall be extinguished: Provided, That
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a release cannot be set up against a third person who has a reasonable
interest.
Sub-Section 6 Merger
Article 507 (Requisite for and Effect of Merger)
If a claim and the corresponding obligation become vested in one and the
same person, the claim shall be extinguished: Provided,
That this shall
not apply if such claim itself is a subject of a third person s right.
SECTION 7 Debts Payable to Order
Article 508 (Form of Assignment of Debt Payable to Order)
A debt payable to order may be assigned by means of endorsement on
and
delivery of the instrument.
Article 509 (Endorsement to Party Liable on Instrument)
(1) A debt payable to order may be assigned even to its obligor by means
of endorsement.
(2) An obligor who has been assigned the debt payable to order by means
of endorsement may assign it by means of re-endorsement.
Article 510 (Form of Endorsement)
(1) An endorsement must be written on the instrument or on a slip affixed
thereto and the endorser must sign or write his name and
affix his seal
on it.
(2) The endorsement may be made by means of leaving the endorsed un-
specified, and it may be made by means of simply a signature
of the endorser
or the name and seal of an endorser.
Article 511 (Form of Disposition of Informal Endorsement)
If an endorsement has been made in an informal way according to par-
agraph (2) of the preceding Article, the holder may dispose of it in the
form of each of following subparagraphs.
1. His own name or the name of some other person may be written as
an endorsee;
2. An endorsement may again be made on the instrument in an informal
way or by means of indicating some other person as an endorsee;
and
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3. The instrument may be assigned by means of delivering it to a third
person without indicating the endorsee, and without endorsing
it.
Article 512 (Effect of Endorsement Payable To Bearer )
An endorsement payable to bearer is equivalent to an informal endorsement.
Article 513 (Effect of Establishing Title by Endorsement)
(1) The possessor of an instrument is deemed to be the lawful holder
if
he establishes his title to the instrument through an uninterrupted series
of endorsements. The same shall apply even if the
last endorsement is
in an informal way.
(2) If an informal endorsement is followed by another endorsement, the
endorser of this last endorsement is deemed to have acquired
the in-
strument by the informal endorsement.
(3) Cancelled endorsements are deemed not to be written in connection
with the uninterrupted series of endorsements.
Article 514 (Effect of Establishing Title-a bona fide Purchase)
No person can require the lawful holder of an instrument to give
it up:
Provided, That this shall not apply if, the holder acquired it, he was aware
that the assignor did not have title, or was
not aware of it owing to gross
negligence.
Article 515 (Endorsement Transferring Rights and Personal Defenses)
The debtor of a debt payable to order cannot set up against
the holder
defenses arising from his personal relations with the previous holders:
Provided, That this shall not apply if the holder
has knowingly acquired
the debt payable to order to the detriment of the debtor.
Article 516 (Place of Performance)
If the place of performance is not determined by the instrument, the
present place of business of the obligor shall be the place
of performance.
If he has not the place of business, his present domicile shall be the
place of performance.
Article 517 (Presentation of Instrument and Performance Delay)
Even in a case where the time for performance is determined by the
instrument, the obligor shall be in default only when the holder has
presented the instrument and demanded performance after the
time for
performance has commenced.
Article 518 (Right and Duty of Debtor to Verify)
The debtor is bound to verify the regularity of the series of endorsements,
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and he has the right, but is not under any duty, to verify the genuineness
of the signature or name and seal of the endorser, or
the identity of the
holder: Provided, That if, when the debtor effected payment, he was aware
that the holder is not the person
having the right or fails to know it owing
to gross negligence, the payment shall be null and void.
Article 519 (Performance and
Delivery of Instrument)
The debtor is bound to effect performance only in exchange for the in-
strument.
Article 520 (The Claim to Subscribe Receipt of Instrument)
(1) The debtor, when he effects performance, may require the instrument
to be receipted by the holder.
(2) In the case of partial payment, if the debtor requires, the obligee is
bound to make mention of this payment on the instrument.
Article 521 (Lapse of Instrument by Procedure of Public Summons)
The instrument which has been destroyed, or has become separated
from
the possession of the holder may be voidable by the procedure of public
summons.
Article 522 (Deposit or Performance by Procedure of Public Summons)
When there exists a cause for application for a public summons,
it may
cause the obligor to deposit the subject matter of the obligation, and it
may cause the obligor to effect performance, if
the holder furnishes
adequate security.
SECTION 8 Debts Payable to Bearer
Article 523 (Form of Assignment of Bearer Security)
A debt payable to bearer may be assigned by means of delivery of the
instrument.
Article 524 (Provisions to be Applied Mutatis Mutandis)
The provisions of Articles 514 through 522 shall be applied mutatis
mutandis
to a debt payable to bearer.
Article 525 (Debt Payable to Named Obligee or to Bearer)
The instrument in which the obligee is named with an additional state-
ment that the payment is to be made to the holder, is equivalent to a
debt payable to bearer.
Article 526 (Instrument for Discharge)
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The provisions of Articles 516, 517 and 520 shall be applied mutatis
mutandis to the instrument issued by the obligor in order to
escape from
the responsibility by means of effecting performance to the holder of the
instrument.
CHAPTER CONTRACT
SECTION 1 General Provisions
Sub-Section 1 Formation of Contract
Article 527 (Binding Force of Offer of Contract)
An offer of a contract may not be withdrawn.
Article 528 (Offer of Contract Specifying Period for Acceptance)
(1) An offer of a contract specifying a period for acceptance shall
lose
its effect if the offerer does not receive a notice of acceptance within the
period specified.
(2) In a case where a notice of acceptance had arrived after the expiration
of the period mentioned in the preceding paragraph,
if it was dispatched
at such a time that under normal circumstances it would have arrived
within such period, the offerer shall
dispatch, without delay, to the other
party a notice of the delayed arrival: Provided, That this shall not apply
in a case where
a notice of the delay has already been dispatched by the
offerer before its arrival.
(3) If the offerer has neglected to give the notice mentioned in the preceding
paragraph, the notice of acceptance shall be deemed
not to have been
delayed.
Article 529 (Offer of Contract not Specifying Period for Acceptance)
An offer of a contract which does not specify a period for
acceptance loses
its effect if the offerer does not receive a notice of acceptance within a
reasonable period.
Article 530 (Effect of Delayed Acceptance)
The offerer may regard a delayed acceptance as a new offer in the cases
of the preceding two Articles.
Article 531 (Time when Contract inter absentes Comes into Existence)
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A contract inter absentes shall come into existence at the time when a
notice of acceptance is dispatched.
Article 532 (Formation of Contract by Realization of Intention)
In a case where no notice of acceptance is necessary either by reason
of
declaration of intention to that effect by the offerer, or by reason of custom,
the contract shall come into existence upon
the occurrence of an event
which may be taken as a declaration of intention to accept.
Article 533 (Crossed Offer)
Where offers of the same content, are sent to each other the contract shall
come into existence at the time when each of the two
offers has reached
each other party.
Article 534 (Acceptance with Modification)
If the offeree has accepted an offer but subject to a condition or with any
other modification, he shall be deemed to have rejected
the original offer
and thereby simultaneously made a new offer.
Article 535 (Culpa in Contrabendo)
(1) In a case where a contract, whose objective is unattainable, is concluded,
a party to the contract who was aware of, or should
have been aware
of such unattainability, shall be liable for damages suffered by the other
party who relied upon the contract as
valid: Provided, That the amount
of damages to be recovered may not exceed the profit which would have
occurred if the contract
was valid.
(2) The provisions of the preceding paragraph shall not apply in a case
where the other party was aware of, or should have been
aware of such
unattainability.
Sub-Section 2 Effect of Contract
Article 536 (Exceptio non adimpleti contractus)
(1) One of the parties to a bilateral contract may refuse performance of
his own obligation until the other party tenders performance
of his ob-
ligation: Provided, That this shall not apply where the obligation of the
other party is not due.
(2) If one of the parties to a contract is bound to tender performance
of his own obligation first to the other party, and if there
is any significant
cause existing by which the other party s performance becomes difficult,
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the body of the preceding paragraph shall apply.
Article 537 (Obligor's Burden to Bear Risk)
If the performance of an obligation of one of the parties to a bilateral
contract becomes impossible by any cause for which neither
of the parties
is responsible, the obligor may not be entitled to counter-performance.
Article 538 (Impossibility of Performance
due to Cause for Which Obligee
is Responsible)
(1) If the performance of an obligation of one of the parties to a bilateral
contract becomes impossible by any cause for which
the obligee is res-
ponsible, the obligor may demand counter-performance. The same applies
to cases where performance becomes impossible
by any cause for which
neither of the parties is responsible in the case of mora creditoris.
(2) In the cases of the preceding
paragraph if the obligor has received
any benefit by being relieved of his own obligation, he shall return such
benefit to the
obligee.
Article 539 (Contract in Favour of Third Person)
(1) Where a party to a contract has agreed therein to effect an act of
performance in favour of a third person, the person may demand
such
act of performance directly from the obligor.
(2) In the case of the preceding paragraph the right of the third person
shall come into existence from the time when he declares
to the obligor
his intention to accept the benefit of the contract.
Article 540 (Obligor's Right to Demand Third Person s Answer)
In the case of the preceding Article the obligor may, with a reasonable
period fixed, demand the third person to answer whether
or not he will
receive and enjoy the benefit stipulated in the contract. If the obligor has
not received a definite answer from
the third person within such period,
it shall be deemed that the third person has refused to receive the benefit
stipulated in
the contract.
Article 541 (Establishment of Third Person's Right)
The right of the third person which has come into existence in accordance
with
the provisions of Article 539, shall not be altered or extinguished
by the parties.
Article 542 (Obligor's Right to Defend)
Defences incidental to the contract mentioned in Article 539 may be set
up by the obligor against the third person who is to receive
the benefit
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of the contract.
Sub-Section 3 Rescission for the Future and Rescission of
Contract
Article 543 (Right of Rescission for Future or of Rescission)
(1) If, pursuant to the contract or the provisions of Acts, one of
the
parties or both parties have a right of rescission for the future, or a right
of rescission, either right of rescission shall
be effected by a declaration
of intention made to the other party.
(2) The declaration of intention mentioned in the preceding paragraph
may not be withdrawn.
Article 544 (Delay of Performance and Rescission)
If one of the parties does not perform his obligation, the other party may
fix
a reasonable period and give peremptory notice demanding its per-
formance, and may rescind the contract, if no performance is effected
within
such period: Provided, That if the obligor declares in advance his intention
that he will not effect such performance, no
peremptory notice shall be
required.
Article 545 (Periodic Acts and Rescission)
If, according to the nature of the contract or by a declaration of intention
of the parties, the objective for which the contract
has been entered is
unattainable unless it is performed at a designated time and date or within
a designated period, and one of
parties has not effected performance on
his part, the other party may, without giving the notice mentioned in
the preceding Article,
rescind the contract.
Article 546 (Impossibility of Performance and Rescission)
If performance has become impossible for any cause for which the obligor
is responsible, the obligee may rescind the contract.
Article 547 (Indivisibility of Right of Rescission for Future or of Rescission)
(1) Where there are several persons as parties to each side of a contract,
a right of rescission for the future or a right of rescission
of the contract
shall only be effected by or against all of them.
(2) If, in the case mentioned in the preceding paragraph the
right of
rescission for future or the right of rescission has lapsed against one of
the parties, it shall also lapse as against
the others.
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Article 548 (Effect of Rescission and Restitutio in Integrum)
(1) If one of the parties has rescinded the contract, each party shall
be
liable to restore his other party to his original position: Provided, That
the rights of third persons shall not be prejudiced
thereby.
(2) Interest shall be paid upon any money to be repaid in the case mentioned
in the preceding paragraph as from the day
on which such money has
been received.
Article 549 (Restitutio in Integrum and Exceptio non Adimpleti Contractus)
The provisions of Article 536 shall apply mutatis mutandis
to the case
mentioned in the preceding Article.
Article 550 (Effect of Rescission for Future)
If one of the parties rescinds a contract for the future, the contract shall
lose its effect for the future.
Article 551 (Rescission for Future or Rescission and Claims for Damages)
Rescission for the future or rescission of a contract shall
not affect any
claim for damages.
Article 552 (Right of Peremptory Notice as to Whether Other Party Ex-
ercises Right of Rescission or not)
(1) If no period is fixed for the exercise of a right of rescission, the other
party may demand of the person entitled to rescission
to make a definite
answer by fixing a reasonable period as to whether he rescinds the
contract or not.
(2) If no notice of rescission has been received within the period mentioned
in the preceding paragraph, the right of rescission
shall lapse.
Article 553 (Extinction of Right of Rescission due to Injury, etc.)
If a person entitled to a right of rescission
has by his intentional act or
negligence, materially damaged the subject matter of the contract, or has
become unable to return
it, or has caused it to be converted into a
different kind of object by processing or altering it, the right of rescission shall
be extinguished.
SECTION 2 Gift
Article 554 (Meaning of Contract of Gift)
A contract of gift shall become effective when one of the parties declares
his intention to transfer property of his own gratuitously
to the other
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party and the other party agrees to accept it.
Article 555 (Contract of Gift not in Writing and its Rescission)
A contract of gift which is not in writing may be rescinded by
either party.
Article 556 (Acts of Donee and Rescission of Contract of Gift)
(1) The donor may rescind a contract of gift in favor
of the donee for the
reasons as prescribed in the following subparagraphs:
1. If the donee has committed an act of crime against the donor, his or
her spouse or lineal relatives by blood; and
2. Where the donee is under duty to support the donor, but does not
perform this duty.
(2) The right of rescission mentioned in the preceding paragraph shall
be extinguished after the lapse of six months from the day
on which the
donor was aware of the occurrence of any cause of rescission or at the
time when he has declared an intention of acquiescence.
Article 557 (Change of Donor's Property Status and Rescission of Con-
tract of Gift)
The donor may rescind a contract of gift, if after the conclusion of a contract
of gift the donor s property status has been adversely
changed and the
donor s living has become gravely affected by the performance of contract
of gift.
Article 558 (Rescission and Portion as to Which Performance of Contract
has been Completed)
Rescission of a contract of gift in accordance with the provisions of the
preceding three Articles shall not have any effect in
respect of any portion
as to which performance has been completed.
Article 559 (Donor's Liability for Warranty)
(1) A donor shall not be liable for any defect or deficiency in the thing
or right which forms the subject of his gift: Provided,
That this shall not
apply to cases where he was aware of such defect or deficiency and has
nevertheless failed to inform the donee
thereof.
(2) In respect of a gift subject to a charge, the donor shall assume the
same liability in respect of warranty as that of a seller
to the extent of
such charge.
Article 560 (Gift for Periodical Performance and Lapse due to Death)
A contract of gift for periodic performance shall lose its
effect upon the
death either of the donor or of the donee.
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Article 561 (Gift subject to Charge)
The provisions relating to bilateral contract shall apply to a gift subject
to a charge, in addition to the provisions of this Section.
Article 562 (Gift Effective upon Death)
The provisions relating to testamentary gifts shall apply mutatis mu-
tandis to a contract of gift which is to become effective
upon the death
of the donor.
SECTION 3 Sale
Sub-Section 1 General Provisions
Article 563 (Definition of Sale)
A sale shall become effective when one of the parties agrees to transfer
a property right to the other party and the other party
agrees to pay the
purchase-price to the former.
Article 564 (Unilateral Promise to Sell or Purchase)
(1) A unilateral promise to sell or purchase shall become effective as a
sale
from the time when the other party declares his intention to complete
the sale.
(2) Where no period is fixed for the declaration of intention mentioned
in the preceding paragraph, the person who has made a unilateral
promise
may give a peremptory notice to the other party to give a definite answer
within a reasonably fixed period as to whether
he will or will not complete
the sale.
(3) If the other party fails to give an answer within that period, the
unilateral promise shall become void.
Article 565 (Earnest Money)
(1) If one of the parties to a contract of sale has delivered, at the time
of entering into the contract, money or other things
under the name of
down payment, assurance deposit, etc. to the other party, unless otherwise
agreed upon between the parties, the
deliverer by giving up such money,
and the receiver by repaying double such money, may rescind such contract
before one of the
parties has initiated performance of the contract.
(2) The provisions of Article 551 shall not apply to the case mentioned
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in the preceding paragraph.
Article 566 (Burden of Expenses Relating to Contract of Sale)
The expenses relating to a contract of sale shall be borne by both
parties
in equal shares.
Article 567 (Mutatis Mutandis Application to Contract for Value)
The provisions of this section shall apply mutatis mutandis to
contracts
for value other than sales: Provided, That this shall not apply in the case
where the nature of such contracts does not
so permit.
Sub-Section 2 Effect of Sale
Article 568 (Effect of Sale)
(1) The seller shall transfer a right which has been made the object of
a sale to the buyer, and the buyer shall pay the purchase-price
to the
seller.
(2) The duties of both parties mentioned in the preceding paragraph shall,
unless there exists any specific agreement or custom,
be performed con-
currently by both parties.
Article 569 (Sale of Right Belonging to Another Person)
In the case where a right, which has been made the object of a sale, belongs
to another person, the seller shall acquire such right and transfer it to
the buyer.
Article 570 (Sale of Right Belonging to Another Person-Seller s Liability
for Warranty)
If, in the case mentioned in the preceding Article the seller is unable,
by acquiring the right he has sold, to transfer it to the
buyer, the buyer
may rescind the contract: Provided, That if he was aware, at the time
the contract was made, that the right did
not belong to the seller, he
may not claim damages.
Article 571 (Sale of Right Belonging to Another Person-bona fide Seller s
Liability for Warranty)
(1) If the seller was unaware, at the time the contract was made, that
the right which has been made the object of a sale did not
belong to him,
and the seller is unable, by acquiring the right he has sold, to transfer
the right to the buyer, the seller may,
paying damages suffered by the
buyer, rescind the contract.
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(2) If, in the case of the preceding paragraph, the buyer was aware at
the time the contract was entered that the right did not
belong to the
seller, the seller may, by giving notice that he is unable to transfer the
right to the buyer, rescind the contract.
Article 572 (Case Where Part of Right Belongs to Another Person and Seller s
Liability for Warranty)
(1) If the seller is unable to acquire and transfer the right to the buyer
by reason of the fact that a part of the right which
forms the object of
a sale belongs to another, the buyer may demand a reduction of the
purchase-price in proportion to the part.
(2) If in the case of the preceding paragraph the buyer would not have
bought the remaining part, had such alone been the object
of the sale,
the buyer acting in good faith may rescind the whole of the contract.
(3) The bona fide buyer may claim damages besides
claiming for a reduction
of the purchase-price or the rescission of a contract.
Article 573 (Period during Which Right Mentioned
in Preceding Article
is to be Exercised)
The right mentioned in the preceding Article shall be exercised within
one year from the time when the buyer became aware of the
fact, if the
buyer was acting in good faith, and from the time when the contract was
entered if the buyer was acting in bad faith.
Article 574 (Partial Shortage and Loss of Items Sold and Seller s Liability
for Warranty)
The provisions of the preceding two Articles shall apply mutatis mutandis
to the case where the articles sold by quantity show a
shortage or part
of the subject matter of sale had already been lost at the time when the
contract was entered and the buyer was
unaware of such shortage or loss.
Article 575 (Case Where Restricted Real Rights Exist in Contract and
Seller's Liability for Warranty)
(1) Where the subject matter of a sale is subject to a superficies, servitude,
chonsegwon, right of retention, or pledge and the
buyer was unaware
thereof, the buyer may rescind the contract only if the objective of the
contract is not unattainable thereby.
In other cases the buyer may only
claim damages.
(2) The provisions of the preceding paragraph shall apply mutatis mutandis
to the cases where a servitude which has been represented
as existing
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in favour of the immovable which is the subject of the sale does not exist
or where a registered lease exists on such an immovable.
(3) The rights mentioned in the preceding two paragraphs shall be
exercised within one year from the time the buyer became aware
of the
fact.
Article 576 (Exercise of Right of Mortgage or Chonsegwon and Seller's
Liability for Warranty)
(1) If the buyer has been unable to acquire or has lost the ownership
of the immovable which forms the subject of a sale by reason
of the exercise
of a right of mortgage or chonsegwon existing over such an immovable,
the buyer may rescind the contract.
(2) In the cases of the preceding paragraph, if the buyer has preserved
the ownership at his own expense, he may demand reimbursement
of such
expenses from the seller.
(3) In a case where mentioned in the preceding two paragraphs the buyer
may recover damages he has sustained from the seller.
Article
577 (Sale of Superficies and Chonsegwon Which Forms Subject
of Mortgage and Seller s Liability for Warranty)
The provisions of the preceding Article shall apply mutatis mutandis to
the sale of superficies or chonsegwon which have been the
subject of the
mortgage.
Article 578 (Sale by Auction and Seller's Liability for Warranty)
(1) In the case of a sale by auction, the successful bidder may
in accordance
with the provisions of the preceding eight Articles, either rescind the
contract or demand a reduction of the purchase-price
against the obligor.
(2) In the case of the preceding paragraph, if the obligor is under financial
disability, the successful bidder
may demand all or some of the proceeds
of the sale which the obligee has received as his portion of the proceeds
of the sale.
(3) If, in the cases of the preceding two paragraphs, the obligor was aware
of any deficiency in the object or right sold and nevertheless
failed to
disclose it, or the obligee was aware of such deficiency and demanded
a sale by auction, the successful bidder may claim
damages either from
the obligor or obligee who was aware of such deficiency.
Article 579 (Sale of Claim and Seller's Liability
for Warranty)
(1) If the seller of a claim warrants the solvency of the obligor, he is
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presumed to have warranted his solvency at the time the contract was
entered.
(2) If the seller of a claim which is not yet due warrants the solvency
of the obligor, he is presumed to have warranted his solvency
at the time
when the claim becomes due.
Article 580 (Seller's Liability for Warranty Against Defect)
(1) If any defects exist in the subject-matter of a sale, the provisions
of Article 575 (1) shall apply mutatis mutandis: Provided, That if the
buyer was aware of or was not aware of such defects due
to his negligence,
this shall not apply.
(2) The provisions of the preceding paragraph shall not apply to the cases
of a sale by auction.
Article 581 (Sale in Kind and Seller's Liability for Warranty)
(1) Even where the subject matter of a sale has been specified in
kind,
if any defects exist in the specified subject matter, the provisions of the
preceding Article shall apply mutatis mutandis.
(2) In the cases of the preceding paragraph, the buyer may demand the
non-defective item without rescinding a contract or claiming
for damages.
Article 582 (Period during Which Rights Mentioned in Preceding Two Ar-
ticles are to be Exercised)
The rights mentioned in the preceding two Articles shall be exercised by
the buyer within six months from the time when he was first
aware of
such fact.
Article 583 (Liability for Warranty and Concurrent Fulfilment)
The provisions of Article 536 shall apply mutatis mutandis to the
cases
of Articles 572 through 575, 580 and 581.
Article 584 (Special Stipulation for Relief of Liability for Warranty)
Even where the seller has made a special stipulation that
he is not liable
in respect of the warranties mentioned in the preceding fifteen Articles,
he may not be relieved of liability
in respect of any fact of which he was
aware and nevertheless failed to disclose, or in respect of any right which
he himself created
in favour of, or assigned to, a third person.
Article 585 (Presumption of Same Time-Limit)
If a time has been stipulated for the performance of duties of one party
to a contract of sale, the same time-limit shall also be
presumed to have
been stipulated for the other party s performance of duties.
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Article 586 (Place of Payment of Purchase-Price)
If the purchase-price is to be paid in exchange for the delivery of the
subject matter of the sale, the payment shall be made at
the place of
delivery.
Article 587 (Reversion of Fruits and Interest on Purchase-Price)
If the subject matter of a sale which has not yet been delivered
produces
fruits after a contract of sale has been entered, such fruits shall vest in
the seller. The buyer shall pay interest on
the purchase-price from the
day of the delivery: Provided, That if a time-limit has been stipulated
for payment of the purchase-price,
this shall not apply.
Article 588 (Buyer's Right to Refuse Payment of Purchase-Price Where
Third Person Claims Right)
If a third person claims a right over the subject matter of the sale, and
consequently there is a danger of the buyer s losing what
he has bought
in whole or in part, he may refuse payment of the purchase-price to the
extent of such danger: Provided, That this
shall not apply when the seller
furnishes reasonable security.
Article 589 (Seller's Right to Demand Buyer to Deposit Purchase-Money)
In the case of the preceding Article, the seller may demand
the buyer
to deposit the purchase-price.
Sub-Section 3 Redemption
Article 590 (Definition of Redemption)
(1) If the seller reserves the right of redemption at the time of the
contract of sale, the seller may redeem the object of a sale
by returning
the purchase-money received and the expenses relating to such a sale
borne by the buyer.
(2) If any specific agreement concerning the redemption money has been
made between the parties referred to in paragraph (1), such
agreement
shall govern the matters concerning redemption money.
(3) Unless a specific agreement has been made between the parties
in
the cases of paragraphs (1) and (2), the fruits of the object of the sale
and the interest on the purchase-price shall be deemed
to have been setoff
against each other.
Article 591 (Period for Redemption)
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(1) The period for redemption shall not exceed five years in the case of
immovables and three years in the case of movables. If
any period spe-
cifically agreed upon between the parties exceeds the period mentioned
above, it shall be reduced to five years
in the case of immovables and
three years in the case of movables.
(2) If a period for redemption has been fixed, it may not subsequently be
extended.
(3) If no period for redemption has been designated, the period shall be
deemed to be five years in the case of immovables and three
years in
the case of movables.
Article 592 (Registration of Right of Redemption)
If, where the object of a sale is an immovable, the reservation of the right
of redemption has been registered simultaneously with the registration of
a sale, such registration shall be effective against the
third persons.
Article 593 (Subrogative Exercise of Right of Redemption and Right of
Buyer)
Where a creditor of the seller desires to redeem the property in place of
the seller, the buyer may extinguish the right of redemption
by discharging
the debt of the seller, out of the balance remaining after the amount to
be repaid by the seller has been deducted
from the value of the object,
as assessed by an expert appointed by the court, and by paying the surplus,
if any, to the seller.
Article 594 (Execution of Redemption)
(1) The seller shall lose the right of redemption unless he tenders the
purchase-price he received and the expenses relating to
the sale to the
buyer within the specified period for redemption.
(2) If the buyer or any subsequent purchaser has disbursed expenses
in
respect of the object of a sale, the seller shall reimburse the same amount
in accordance with the provisions of Article 203:
Provided, That with
respect to useful expenses the court may upon the application of the seller,
allow him a reasonable period
for reimbursement.
Article 595 (Redemption of Common Share)
If, after one of the co-owners of the object of a sale, in which the right
of redemption has been reserved, has sold his share,
and the partition
of, or sale by auction of such an object has taken place, the seller may
exercise the right of redemption in
respect of that part or the purchasemoney
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which the buyer has received or is to receive: Provided, That the buyer
who has not given any notice upon the partition or a sale
by auction to
the seller, may not set up against the seller therewith.
SECTION 4 Contract of Exchange
Article 596 (Definition of Contract of Exchange)
A contract of exchange becomes effective when two parties agree to
exchange any property right other than money.
Article 597 (Supplementary Disbursement of Money)
If one of the parties has agreed to transfer the property rights mentioned
in
Article 596 together with the additional payment of money, the pro-
visions relating to the purchase-price of a sale shall apply
mutatis mutandis
with respect to the money.
SECTION 5 Loan for Consumption
Article 598 (Definition of Loan for Consumption)
A loan for consumption becomes effective when one of the parties agrees to
transfer the ownership of money, or any other substitute,
to the other
party, and the other party agrees to return the same amount of money
or the same kind, quality, and quantity of any
substitute therefor.
Article 599 (Bankruptcy and Invalidation of Loan for Consumption)
A loan for consumption shall cease to be
effective, if one of the parties
has been declared bankrupt before the lender delivers the object of the
loan for consumption to
the borrower.
Article 600 (Commencement of Computing Interest)
Computation of interest on a loan for consumption shall begin from the
time when the borrower has received the object of a loan
for consumption.
When the borrower has delayed receiving the delivery of the object for
a reason for which the borrower is responsible,
the computation of interest
shall be commenced from the time when the lender has tendered the
delivery of such an object.
Article 601 (Loan for Consumption Bearing No Interest and Right of
Rescission)
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107 (Supp. 42)
Either party to a loan for consumption bearing no interest may rescind
the contract at any time before the object of a loan for
consumption has
been delivered to the borrower: Provided, That if damages have been
caused to the other party due to the rescission
of the contract, the
rescinding party shall be liable to compensate for such damages.
Article 602 (Lender's Liability for Warranty)
(1) If any defect is found in the object of a loan for consumption bearing
interest, the provisions of Articles 580 through 582
shall apply mutatis
mutandis.
(2) In the case of a loan for consumption bearing no interest the borrower
may return the value of the defective object: Provided,
That if the lender
was aware of the defect and, nevertheless, failed to inform the borrower
thereof, the provisions of paragraph
(1) shall apply.
Article 603 (Time to Return )
(1) The borrower shall return to the lender an object of the same kind,
quality, and quantity as the object borrowed at the time
agreed upon by
the parties.
(2) If no time for the return of an object has been stipulated by the parties,
the lender shall fix a reasonable period and then
demand the return of
the object loaned: Provided, That the borrower has the right to return
the object borrowed at any time.
Article 604 (Refund of Market Price due to Impossibility of Return)
If it becomes impossible for the borrower to return an object
of the same
kind, quality, and quantity as the borrowed one, he shall refund the value
of the object at the current market price:
Provided, That this shall not
apply to the cases mentioned in Articles 376 and 377 (2).
Article 605 (Quasi-Loan for Consumption)
In case where both parties are liable to furnish money, or any other
substitutes, not by a loan for consumption, if both parties
agree to make
the subject matter the object of a loan for consumption, it becomes effective
as a loan for consumption.
Article 606 (Loan by Substitutes)
If, in the case of pecuniary loans, the borrower accepts delivery of valuable
instruments, or any other thing in place of money,
the amount of the loan
shall be the current price of the object at the time of such delivery to
the borrower.
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Article 607 (Promise to Return by Substitutes)
If the borrower has promised to substitute any other property right in
lieu of the borrowed object, the value of the substituted
property shall
not exceed the aggregate value of the original amount borrowed plus the
interest thereon.
Article 608 (Prohibition of Agreement Prejudicial to Borrower)
Any agreement entered by the parties which is in violation of the
pro-
visions of the preceding two Articles and is prejudicial to the borrower
is not valid even if claimed as a redemption or as
any other legal remedy.
SECTION 6 Loan for Use
Article 609 (Definition of Loan for Use)
A loan for use becomes effective when one of the parties agrees to deliver
an object to the other party for his gratuitous use,
and the taking of profits
therefrom, and when the other party agrees to return such object after
having used and taken profits
therefrom.
Article 610 (Borrower's Right to Use and Take Profits)
(1) The borrower shall use and take profits from the object in such a manner
as is determined by the contract or by the nature of its subject matter.
(2) The borrower may not allow a third person to use or
take profits from
the object borrowed without the consent of the lender.
(3) If the borrower has violated the provisions of paragraphs
(1) and (2),
the lender may rescind the contract for the future.
Article 611 (Burden to Bear Expenses)
(1) The borrower shall bear the ordinary and necessary expenses relating
to the object borrowed.
(2) The provisions of Article 594 (2) shall apply mutatis mutandis to any
other expenses.
Article 612 (Provisions to be Applied Mutatis Mutandis)
The provisions of Articles 559 and 601 shall apply mutatis mutandis
to
loans for use.
Article 613 (Time to Return Object Borrowed)
(1) The borrower shall return the object borrowed at the time agreed upon
by the parties.
(2) If no time for the return of the object borrowed has been stipulated
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109 (Supp. 42)
by the parties, the borrower shall return the object when he has completed
the use thereof and the taking of profits therefrom in
conformity with
the purpose specified in the contract or the nature of the subject matter:
Provided, That the lender may rescind
the contract for the future at any
time after a reasonable period has elapsed to allow for the specified use
of the object and
the taking of profits therefrom.
Article 614 (Borrower's Death or Bankruptcy and Rescission of Contract for
Future)
The lender may rescind the contract for the future when the borrower
has died or has been declared bankrupt.
Article 615 (Borrower's Duty for restitutio in integrum and Right to Re-
move)
The borrower shall restore the object borrowed to its original condition
before he returns it to the lender and the borrower may
remove any
attachments which he has attached thereto.
Article 616 (Co-borrower's Joint Obligation)
When several persons jointly borrow an object or objects, they shall be
jointly obligated.
Article 617 (Period for Claiming Damages and Reimbursement of Expenses)
Compensation for damages which have arisen from the use
of the object,
or the taking of profits therefrom contrary to the tenor of the contract
or the nature of the subject matter, and
the reimbursement of expenses
incurred by the borrower, shall be claimed within six months from the
date of the return of the object
borrowed to the lender.
SECTION 7 Lease
Article 618 (Definition of Lease)
A lease becomes effective when one of the parties has agreed to allow
the other party to use an object and take profits therefrom,
and the latter
has agreed to pay rent for it.
Article 619 (Short Term Lease Given by Person without Capacity or Au-
thority to Dispose of Property)
Where a lease is given by a person who has no capacity or authority to
dispose of property, its duration shall not exceed the periods
mentioned
below:
CIVIL ACT
(Supp. 42) 110
1. Ten years for the lease of land for the purpose of planting, collecting
salt, or construction built with stone, lime-stone, brick,
or any other
similar construction;
2. Five years for the lease of any other land;
3. Three years for the lease of a building or any other structure; and
4. Six months for the lease of a movable.
Article 620 (Renewal of Short Term Lease)
The periods mentioned in the preceding Article may be renewed: Provided,
That such renewal shall be effected within one year in
the case of land,
within three months in the case of a building or any other structure, and
within one month in the case of a movable,
prior to the expiration of
the period.
Article 621 (Registration of Lease)
(1) The lessee of an immovable may, unless there exists any contrary
agreement between the parties, request the lessor to cooperate
in effecting
necessary formalities for the registration of the lease.
(2) The lease of an immovable, if registered, shall be effective
against
the third persons from the time registration has been effected.
Article 622 (Defenses Set up against Third Person of Lease
of Land for
Which Ownership of Building has been Registered)
(1) When the object of a lease of land is to own a building, if a building
on such land has been registered by the lessee, the lease
of land shall
be effective against a third person even if such a lease of land has not
been registered.
(2) If a building has been destroyed or has become dilapidated from use
prior to the termination of the lease period, it shall lose
the effect mentioned
in paragraph (1).
Article 623 (Lessor s Duty)
A lessor is bound to deliver the object to the lessee, to maintain conditions
necessary for the use and taking profits of the leased
object while the
lease is in force.
Article 624 (Lessor s Act of Preservation and Duty of Tolerance)
The lessee may not object to a lessor who performs any act deemed
necessary for the preservation of the object leased.
Article 625 (Act of Preservation against Intention of Lessee and Lessee s
Right of Rescission for Future)
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111 (Supp. 42)
If the lessor performs an act of preservation against the will of the lessee
and the lessee is thereby incapable of attaining the
objective for which
the lease has been obtained, the lessee may rescind the contract for the
future.
Article 626 (Lessee s Right to Demand Reimbursement)
(1) If a lessee has made necessary expenditures relating to the preservation
of the object leased he may demand reimbursement thereof from the lesson.
(2) If the lessee has made any useful expenditures, the
lessor shall
reimburse the lessee, to the extent that the increase in value remains
subsisting at the time when the lease terminates,
in the amount disbursed
by the lessee or the amount by which the value of the object has been
increased. In such a case, the court
may, upon the application of the lessor,
allow him reasonable time for settlement with the lessee.
Article 627 (Partial Loss of
Object Leased, and Right to Demand Reduction
of Rent and Right of Rescission for Future)
(1) If part of the leased object has become unusable, or has become
impossible to take profit from, due to loss or any other cause
other than
the fault of the lessee, the lessee may demand a reduction of the rent
in proportion to the part which has been lost.
(2) If, as mentioned in paragraph (1), the remaining part of the object
is not sufficient to enable the lessee to attain the objective
for which the
lease has been made, the lessee may rescind the contract for the future.
Article 628 (Right to Demand an Increase
or Reduction of Rent)
If the rent previously agreed upon by the parties has become unreasonable
due to the increase or decrease
of the public impost imposed upon the
object leased or any other change in the economic situation, either party
may demand of the
other party to raise or reduce the rent for the future.
Article 629 (Restriction on Assignment of Right of Lease and Sub-lease)
(1) A lessee may not assign his rights or sub-lease the leased object
without the consent of the lessor.
(2) If the lessee violates the provisions of paragraph (1), the lessor may
rescind the contract for the future.
Article 630 (Effect of Sub-lease)
(1) If a lessee has sub-leased the object with the consent of the lessor,
the sub-lessee assumes the obligations directly to the
lessor. In this case
the sub-lessee may not set a defense against the lessor by a payment
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(Supp. 42) 112
of the rent to the sub-lessor.
(2) The provisions of paragraph (1) shall not prejudice the exercise of
the lessor s right against the lessee.
Article 631 (Confirmation of Sub-lessee s Rights)
If the lessee has sub-leased the object with the consent of the lessor, the
rights
of the sub-lessee shall not be extinguished even when the contract
of lease is terminated by an agreement between the lessor and
the lessee.
Article 632 (In Case Where Lessee Allows Third Person to Use Small Part of
Building Leased)
The provisions of Articles 629, 630 and 631 shall not apply in cases where
the lessee of a building allows a third person to use
a small part of the
building leased.
Article 633 (Time to Pay Rent)
Rent shall be paid at the end of each month in the case of a movable,
a building, or a building site, and at the end of each year
in the case
of any other land: Provided, That in the case of a leased object which
has a harvest season, rent shall be paid, without
delay, upon the close
of such a season.
Article 634 (Lessee s Duty to Give Notice)
If repairs are necessary to the leased object or a third person claims a
right over it, the lessee shall notify the lessor thereof
without delay:
Provided, That this shall not apply if the lessor has prior knowledge of
this information.
Article 635 (Notice of Rescission for Future of Lease without Fixed Period)
(1) If no period for a lease has been fixed, either
party may give notice
to the other party at any time to rescind the lease for the future.
(2) Rescission of the lease for the future
shall be effective upon the
expiration of the periods mentioned in each of the following subpar-
agraphs, from the day on which
the other party has received the notice
mentioned in paragraph (1):
1. Six months, if the lessor has given notice of rescission of the lease to
the lessee, and one month, if the lessee has given notice
of rescission
of the lease to the lessor, in the case of land, building and any other
structure; and
2. Five days in the case of a movable.
Article 636 (Notice of Rescission for Future of Lease with Fixed Period)
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113 (Supp. 42)
Even in cases where a lease period has been fixed by the parties, the
provisions or Article 635 shall apply mutatis mutandis if
one or both of
the parties has reserved a right to rescind the lease for the future with
respect to the remaining unexpired term.
Article 637 (Lessee s Bankruptcy and Notice of Rescission of Contract for
Future)
(1) If the lessee has been declared bankrupt, either the lessor or the
bankruptcy trustee may, in accordance with the provisions
of Article 635,
give notice to rescind the lease for the future with respect to the remaining
unexpired term, notwithstanding the
fact that the lease contained a
fixed period of rental.
(2) In the cases of paragraph (1), neither party may claim damages arising
from the rescission of the lease for the future with
respect to the remaining
unexpired term.
Article 638 (Notice of Rescission to Sub-lessee)
(1) If a lease has been terminated by the notice of rescission with respect
to its unexpired rental period, and the leased object
has lawfully been
sub-leased, the lessor may not set up a claim against the sub-lessee based
on the rescission of the lease unless
notice is given to the sub-lessee.
(2) The provisions of Article 635 (2) shall apply mutatis mutandis in cases
where the sub-lessee
receives the notice mentioned in paragraph (1).
Article 639 (Implicit Renewal)
(1) If the lessee continues to use the object leased, or takes profits
therefrom after the expiration of the period of the lease,
and the lessor
fails to raise any objection thereto within a reasonable period, it shall
be deemed to have created a new lease
on the same terms and conditions
as those of the previous one: Provided, That either party may give notice
to the other party to
rescind the lease for the future in accordance
with the provisions of Article 635.
(2) In the case of paragraph (1), the security for the previous lease
furnished by a third person shall be extinguished by expiration
of the period.
Article 640 (Rent in Arrears and Rescission of Lease for Future)
In the case of the lease of a building or any other
structure, if the amount
of rent in arrears reaches the rent for two periods, the lessor may rescind
the contract for the future.
Article 641 (Rent in Arrears and Rescission Future)
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(Supp. 42) 114
The provision of Article 640 shall apply mutatis mutandis to the case
of a lease of land where the object is to own a building or
any other
structure, or is for planting, collecting salt, and stock farming.
Article 642 (Rescission of Lease of Land for Future
and Notice to Mortgage
Right Holders)
The provisions of Article 288 shall apply mutatis mutandis in the cases
of Article 641 if a building or any other structure on such
land becomes
an object of real right granted by way of security.
Article 643 (Lessee s Right to Demand Renewal of Contract and
Right
to Demand Purchase of Building, etc.)
The provisions of Article 283 shall apply mutatis mutandis to buildings,
trees, or any other facilities on land remaining after
the expiration of the
period of the lease of land where the object is to own a building or any
other structure, or is for planting,
collecting salt, and stock farming.
Article 644 (Sub-lessee s Right to Demand Lease Contract and Right to
Demand Purchase of Building)
(1) In the case of a land lease where the lessee s objective is to own a
building or any other structure, or for planting, collecting
salt, and stock
farming, where the land has been lawfully sub-leased, if any building, tree
or any other facilities on the land
remains subsisting at the time when
the periods for lease and sub-lease have concurrently terminated, the sub-
lessee may demand
that the lessor give him a lease on the same terms as
those of the former sub-lease.
(2) The provisions of Article 283 (2) shall apply mutatis mutandis, if,
in the case of paragraph (1), the lessor does not desire
to lease his land.
Article 645 (Right to Demand Lease and Right to Demand Purchase Ex-
ercisable by Lessee of Land which became
Object of Superficies)
The provisions of Article 644 shall apply mutatis mutandis in a case
where a superficiary leases land which
became the object of superficies.
Article 646 (Lessee's Right to Demand Purchase of Accessories)
(1) If the lessee of a building
or any other structure has attached an
Article to such a building, etc. with the consent of the lessor for the benefit
of the lessee
s use, the lessee may demand that the lessor purchase such
accessories at the time when the contract of lease terminates.
(2) The
provisions of the preceding paragraph shall apply to the ac-
cessories purchased from the lessor.
10
115 (Supp. 42)
Article 647 (Sub-Lessee's Right to Demand Purchase of Accessories)
(1) If, in a case where the lessee of a building or any other
structure
has lawfully sub-leased such a building, etc., and the sub-lessee has
attached an Article to such a building, etc. with
the consent of the lessor
for the benefit of the sub-lessee s use, the sub-lessee may demand that
the lessor purchase such accessories
at the time when the contract of
sublease terminates.
(2) The provisions of the preceding paragraph shall also apply to the ac-
cessories purchased from the lessor or purchased from
the lessee with
the consent of the lessor.
Article 648 (Pledge for Accessories, Fruits, etc. on Leased Land, Reco-
gnized by Law)
If the lessor of land levies an attachment pursuant to the claims relating
to the lease, on a movable owned by the lessee which
is affixed to the
leased land, or offered for the benefit of the lessee s use, and fruits accruing
from such land, it shall be
effective as a pledge.
Article 649 (Mortgage on Building on Leased Land, Recognized by Law)
If the lessor of land levies an attachment
on a building on his land owned
by the lessee, pursuant to the claims for rent of the last two years, for which
period rent has
not been paid, such right shall be effective as a mortgage.
Article 650 (Pledge for Accessories attached to Leased Building, etc.,
Recognized by Law)
If the lessor of a building or any other structure attaches, pursuant to
the claims created under the lease, a movable owned by
the lessee and
also attached to the building or any other structure, it shall be effective
as a pledge.
Article 651 (Duration of Lease Contract)
(1) The duration of the lease except in cases of land lease the object of
which is to own a building or any other structure made
of stone, limestone,
brick or any other solid building or structure, or is for planting or collecting
salt, shall not exceed twenty
years. If the period agreed upon by the
parties exceeds twenty years, the period shall be shortened to twenty
years.
(2) The period mentioned in paragraph (1) may be renewed. The period shall
not exceed ten years from the day on which it has been
renewed.
Article 652 (Mandatory Provisions)
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(Supp. 42) 116
Any agreement entered by the parties in contravention of the provisions
of Articles 627, 628, 631, 635, 638, 640, 641, and 643 through
647 which
is unfavorable to either the lessee or sub-lessee shall be void.
Article 653 (Special Rule Applicable to Lease for Temporary
Use)
The provisions of Articles 628, 638, 640, 646 through 648, 650 and
Article 652 shall not apply to the cases where it is evident
that a lease
or sub-lease is given for temporary use.
Article 654 (Provisions to be applied Mutatis Mutandis)
The provisions of Articles 610 (1), 615 through 617 shall apply mutatis
mutandis to the cases of lease.
SECTION 8 Contract of Employment
Article 655 (Definition of Contract of Employment)
A contract of employment becomes effective when one of the parties
agrees to
render services to the other party and the latter agrees to pay
the former remuneration therefor.
Article 656 (Amount of Remuneration and Time to Pay)
(1) Where no agreement has been entered upon between the parties as
to the
amount of remuneration, custom shall prevail accordingly.
(2) Remuneration shall be made at the time mutually agreed upon, but
where no time has been specified, custom shall prevail. In the absence
of any established custom of time, it shall be paid after
the completion
of the work agreed upon without delay.
Article 657 (Exclusivity of Rights and Duties)
(1) The employer may not assign his rights to a third person without the
consent of the employee.
(2) An employee may not substitute a third person to perform his services
without the consent of the employer.
(3) If one of the parties violates the provisions of paragraphs (1) and (2),
the other party may rescind the contract for the future.
Article 658 (Content of Service and Right of Rescission for Future)
(1) If the employer demands of the employee some unrelated
service
which has not been agreed upon between the parties, the employee may
rescind the contract and refuse to perform his services
in the future.
(2) If, in a case where the specified services which have been agreed upon
10
117 (Supp. 42)
between the employer and employee require special training, experience,
and knowledge on the part of the employee, the employer
may rescind
the contract for services for the future if the employee fails to possess
the above qualifications agreed upon.
Article 659 (Lapse of Three Years or More and Right to Give Notice of
Rescission of Contract for Future)
(1) If the period of employment agreed upon between the parties exceeds
three years, or if it is to continue for the lifetime of
one of the parties
or of a third person, either party may give notice of his intention to rescind
the contract of employment for
the future at any time after the expiration
of three years.
(2) In the case of paragraph (1), the notice of intention to rescind the
contract of employment for the future by either of the
parties becomes
effective after three months have elapsed from the date of receipt by the
other party of such notice.
Article 660 (Notice of Rescission for Future of Contract of Employment
in which No Period has been Fixed)
(1) If no period for the employment has been fixed by the parties, either
party may give notice to the other party of his intention
to rescind the
contract for the future at any time.
(2) In the case of paragraph (1), the notice of intention to rescind for
the future becomes effective after one month has elapsed
from the date
of receipt by the other party of such notice.
(3) If remuneration has been fixed on a set and regular periodical basis,
the rescission of the contract for the future shall be
deemed to be effective
after one full period has elapsed from the date of completion of the
current period during which the other
party received the notice of in-
tention to rescind the contract for the future.
Article 661 (Unavoidable Cause and Right to Rescind Contract for Future)
Even where a fixed period for the employment has been set
by the parties,
either party may, if any unavoidable cause arises, rescind the contract
for the future: Provided, That if such
cause arises out of the negligence
of one of the parties, such party is liable for damages to the other party.
Article 662 (Implicit
Renewal)
(1) If the employee continues to render services after the expiration of
the agreed period, and the employer has not raised any
objection thereto
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(Supp. 42) 118
within a reasonable period, they are deemed to have entered into a new
contract of employment on the same terms as before: Provided,
That either
party may give notice to the other party to rescind the contract for the
future in accordance with the provisions of
Article 660.
(2) In the case of paragraph (1), the security furnished by a third person
in respect to the former contract of employment
shall be extinguished at
the expiration of the first period agreed upon.
Article 663 (Employer's Bankruptcy and Notice of Rescission of Contract for
Future)
(1) If the employer has been declared bankrupt, either the employee or
the bankruptcy trustee may rescind the contract of employment,
even
when a term of employment contract has been fixed.
(2) In the case of paragraph (1), neither party may claim from the other
any damages arising from the rescission of the contract for the future.
SECTION 9 Contract for Work
Article 664 (Definition of Contract for Work)
A contract for work becomes effective when one of the parties has agreed
to perform a certain job and the other has agreed to pay
remuneration
for the result of such work.
Article 665 (Time to Make Remuneration)
(1) The remuneration shall be made simultaneously with the delivery of
the finished object of the work: Provided, That if the delivery
of the
object of the work is not required, remuneration shall be paid without
delay after the work has been performed.
(2) The provisions of Article 656 (2) shall apply mutatis mutandis to the
remuneration mentioned in paragraph (1).
Article 666 (Contractor's Right to Demand Creation of Mortgage on
Immovable which is Object of Contract)
The contractor for work on an immovable may demand of the person who
ordered the work to create mortgage on the immovable in order
to secure
the contractor s claim in relation to his remuneration mentioned in
Article 665.
Article 667 (Contractor's Liability for Warranty)
(1) If any defect exists in the completed subject-matter of a work or in
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119 (Supp. 42)
a certain part of the subject-matter of a work which has been finished
before the completion of all the work, the person who ordered
the work
may fix a reasonable period for the contractor to repair and rectify such
defect: Provided, That this shall not apply
if the defect is not material
and if its rectification would involve excessive expense.
(2) The person who has ordered the work
may claim damages in lieu of,
or together with, rectification of the defect.
(3) The provisions of Article 536 shall apply mutatis mutandis in the cases
of paragraph (2).
Article 668 (Contractor's Liability for Warranty-Right of Rescission of
Person Who Ordered Work)
If, by reason of some defect in the finished subject-matter of the work,
the purpose of the contract can not be achieved, the person
who ordered
the work may rescind the contract: Provided, That this shall not apply
to a building or any other structure on land.
Article 669 (Contractor's Liability for Warranty-Release from Respon-
sibility in Case Defect has Arisen through Nature of Materials
Supplied
or Instructions Given by Person Who Ordered Work)
The provisions of Articles 667 and 668 shall not apply if the defect
in
the finished subject-matter of the work has arisen through the nature
of the materials supplied by the person who ordered the
work, or by reason
of instructions given by him: Provided, That this shall not apply if the
contractor, knowing the impropriety
of the materials or instructions,
has failed to notify the person who ordered the work.
Article 670 (Duration of Warranty Liabilities)
(1) The demand for rectifying the defects, the claim for damages, or the
rescission of the contract mentioned in Articles 667, 668
and 669 shall
be made within one year from the day of the delivery of the subject matter
of the work.
(2) Where the delivery of the subject-matter of the work is not required,
the period mentioned in paragraph (1) shall commence to
run from the
day on which the work was finished.
Article 671 (Contractor s Liability for Warranty Special Rules Applicable
to Land, Building, etc.)
(1) A contractor for work with respect to land, a building or any other
structure shall be liable for any defects in the subject-matter
of the work
CIVIL ACT
(Supp. 42) 120
or in its foundations for a period of five years after delivery: Provided,
That this period shall be ten years where the subject-matter
of the work
is made of stone, limestone, brick, metal or any other similar material.
(2) If the subject-matter is destroyed or
damaged by reason of such
defects mentioned in paragraph (1), the person who ordered the work
shall exercise the rights mentioned
in Article 667 within one year from
the day that such destruction or damage took place.
Article 672 (Special Agreement Releasing
Warranty Liabilities)
Even where there was a special agreement between the parties that the
contractor shall not be bound by warranty
liabilities mentioned in Articles
667 and 668, he may not be relieved of liabilities with respect to the
defects in workmanship
or materials of which he was aware and nev-
ertheless failed to give notice.
Article 673 (Right of Rescission of Person who Ordered Work Before Its
Completion)
Before the completion of the contracted work, the person who ordered the
work may rescind the contract at any time, but shall be
liable for damages.
Article 674 (Bankruptcy of Person who Ordered Work and Right of Re-
scission)
(1) If the person who ordered the contracted work has been declared
bankrupt, the contractor or the bankruptcy trustee may rescind
the
contract. In such a case, the contractor may claim in the distribution
of the bankrupt estate remuneration for the part of
work already com-
pleted, and for any other expenses which are not included in such re-
muneration.
(2) In a case where of paragraph (1), neither party may demand from
the other party compensation for any damages which have arisen
from
the rescission of the contract.
SECTION 10 Advertisement for Prize Contest
Article 675 (Definition of Advertisement for Prize Contest)
An advertisement for prize contest shall become effective when an ad-
vertiser has expressed his intention to give a certain reward to any person
who performs a certain act and a contestant has accomplished
such an
act as has been specified in the advertisement.
10
121 (Supp. 42)
Article 676 (Person Entitled to Reward)
(1) If there are several persons who have accomplished the act specified
in the advertisement, the person who accomplished it first
shall be
entitled to the reward.
(2) If two or more persons have accomplished the act simultaneously, each
of them shall be entitled to the reward in equal proportions:
Provided,
That If the reward is by its nature indivisible, or if it has been stipulated
in the advertisement that only one person
is to receive the reward, the
ultimate recipient of such a reward shall be determined by drawing lots.
Article 677 (Act Done by
Person Who was not Aware of Advertisement)
The provisions of Article 676 shall apply mutatis mutandis where a
person has accomplished
the act specified in the advertisement without
knowledge of such an advertisement.
Article 678 (Advertisement which Specifies Prize only for Performance
of Highest Credit)
(1) An advertisement offering the reward only for one of several con-
testants who has performed the act in the manner deserving
the highest
credit shall be effective only if a certain period of definite duration is
stipulated for the contest.
(2) In a case where of paragraph (1), the decision as to whose perfor-
mance deserves the highest credit shall be made by the person
designated
in the advertisement. If no such designation has been made in the ad-
vertisement, the decision shall be made by the
advertiser himself.
(3) A decision that no performance deserves the highest credit among the
contestants shall be impermissible:
Provided, That this shall not be the
case where declaration of a different intention from the above exists in
the advertisement
or the standards of the decision has been stipulated
by the nature of the advertisement.
(4) No contestant may raise objection to the decision mentioned in par-
agraphs (2) and (3).
(5) If two or more persons are judged to have performed the act with
the same highest credit, the provisions of Article 676 (2)
shall apply
mutatis mutandis.
Article 679 (Withdrawal of Advertisement for Prize Contest)
(1) Where a period within which the act specified by the advertiser
is
to be accomplished has been fixed in the advertisement, the advertisement
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may not be withdrawn before the expiration of such period.
(2) In a case where of an unfixed period within which the act specified
by the advertiser is to be performed, the advertiser may, until such time
as a person has completely performed the specified act,
withdraw the
advertisement in the same manner in which it was originally effected.
(3) If the advertisement cannot be withdrawn
in the same manner as the
advertisement was originally effected, the withdrawal may be made in
any other similar manner: Provided,
That such withdrawal shall be effective
only as against persons who have become aware thereof.
SECTION 11 Mandate
Article 680 (Definition of Mandate)
A mandate shall become effective when one of the parties has entrusted
the other party with the management of affairs and the other
party has
consented thereto.
Article 681 (Mandatary s Duty of Care and Due Diligence)
A mandatary shall manage the affairs entrusted to him with the care of
a good manager in accordance with the tenor of the mandate.
Article 682 (Restriction on Right of Reappointment)
(1) A mandatary
may not allow any third person to manage the entrusted
affairs without the consent of the mandator or any inevitable reasons.
(2)
If a mandatary has allowed a third person to manage the entrusted
affairs in accordance with the provisions of paragraph (1), the
provisions
of Articles 121 and 123 shall apply mutatis mutandis.
Article 683 (Mandatary's Duty to Report)
A mandatary shall upon demand by the mandator report on the status
of the management of the entrusted affairs, and upon the termination
of the mandate he shall make a full report on the entire developments
with respect to the management of the entrusted affairs without
delay.
Article 684 (Mandatary's Duty to Deliver and Transfer Things Acquired, etc.)
(1) A mandatary shall deliver to the mandator
all the money and any
other things which he has received and the fruits which he has collected
therefrom in the course of management
of the entrusted affairs.
(2) All rights which the mandatary has acquired in his own name on
behalf of the mandator shall be transferred
to the mandator.
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123 (Supp. 42)
Article 685 (Mandatary's Liability for Pecuniary Consumption of Money)
If a mandatary has spent for his own benefit any money which
he ought
to deliver to the mandator or which is to be used for the mandator s
benefit, he shall pay interest thereon as from the
day on which he spent
such money, and if there are any further damages, he shall also be liable
therefor.
Article 686 (Mandatary's Right to Demand Remuneration)
(1) In the absence of a special agreement, a mandatary may not demand
remuneration
from the mandator.
(2) Where it was agreed that a mandatary is to receive remuneration,
he may not demand it until the entrusted affairs have been
completely
performed: Provided, That if the remuneration has been fixed by periods,
he may demand it after the expiration of the
period.
(3) If a mandate terminates in the course of performance of the entrusted
affairs by the mandatary due to any cause not
attributable to the man-
datary, he is entitled to remuneration in proportion to the affairs already
managed by him.
Article 687 (Mandatary's Right to Demand in Advance Payment of Expenses)
If any expense is required for the management of the entrusted
affairs,
the mandator shall, upon demand by the mandatary, pay them in advance.
Article 688 (Mandatary's Right to Demand Reimbursement
of Expenses, etc.)
(1) If a mandatary has defrayed any expenses necessary for the man-
agement of the entrusted affairs, he may
demand from the mandator the
reimbursement of such expenses with interest thereon from the day on
which they were defrayed.
(2) If a mandatary has assumed an obligation necessary for the man-
agement of the entrusted affairs, he may request the mandator
to perform
it in his place and, if the obligation is not due, to furnish adequate security.
(3) If a mandatary, without any negligence
on his part, sustains damages
through the management of the entrusted affairs, he may demand com-
pensation therefor from the mandator.
Article 689 (Right to Terminate Mandate by either Party at Will)
(1) Either party may at any time rescind a contract of a mandate
for
the future.
(2) If one of the parties rescinds a mandate for the future without any
inevitable reasons when it would be unfavourable to the
other party, he
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shall compensate the other party for any damages occasioned by such
rescission.
Article 690 (Death, Bankruptcy, etc. and Termination of Mandate)
A mandate shall terminate upon the death or bankruptcy of either
party.
The same shall apply where the mandatory is adjudged incompetent.
Article 691 (Measures for Urgency at Time of Termination
of Mandate)
If, on the termination of a mandate, the circumstances are of an urgent
nature requiring the continuous management,
the mandatory, his suc-
cessor or his agent by law shall continue to manage the entrusted affairs
until the mandator, his successor,
or his agent by law becomes in a position
to take over the management of the affairs. In this case, the continuous
management after
the termination of a mandate shall be deemed to have
the same effect as the original mandate.
Article 692 (Requirement of Setting up of Termination of Mandate)
No termination of a mandate can, whether the ground therefor exists
on the part of the mandator or of the mandatory, be set up against the
other party, unless the other party is given notice thereof
or he is oth-
erwise aware thereof.
SECTION 12 Bailment
Article 693 (Definition of Bailment)
Bailment shall become effective when one of the parties has committed
to the other party the custody of money, securities or any
other things,
and the other party has consented thereto.
Article 694 (Prohibition on Use of Bailed Articles by Bailee)
A bailee may not use the bailed Articles without the consent of the
bailor.
Article 695 (Gratuitous Bailee s Duty of Care)
A gratuitous bailee shall give the same degree of care in the custody of
the bailed Articles as he gives with respect to his own
property.
Article 696 (Bailee's Duty to Give Notice)
If a third person alleging a claim right over the bailed Articles has
commenced an action against the bailee or levied an attachment
thereon,
the bailee shall notify the bailor thereof without delay.
Article 697 (Bailor's Liability to Redress Damages Arisen from
Nature of
or any Defect in Bailed Articles)
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125 (Supp. 42)
A bailor shall indemnify the bailee for damages suffered by the bailee,
as a result of the nature of, or any defect in, the bailed
Articles: Provided,
That this shall not be the case if the bailee was aware of such defects.
Article 698 (Rescission of Contract
of Bailment for Future on which Period
has been Fixed)
If a period was fixed for a bailment, a bailee may not, in the absence
of any inevitable reason, rescind a contract of a bailment
for the future
before the expiration of the stipulated period of time: Provided, That the
bailor may rescind the contract at any
time.
Article 699 (Rescission of Contract of Bailment for future on which No
Period has been Fixed)
If no period was fixed for a bailment, either party may rescind a contract
of a bailment at any time.
Article 700 (Place of Returning Bailed Articles)
The bailed Articles shall be returned at the place where they have been
kept: Provided, That if the bailee has for any justifiable
cause removed
it to another place, he may return it at the place where the Articles
actually exist.
Article 701 (Provisions to be Applied Mutatis Mutandis)
The provisions of Articles 682, 684 through 687 and 688 (1) and (2) shall
apply mutatis mutandis to a bailment.
Article 702 (Bailment subject to Consumption)
Where the bailee is allowed by the contract to consume the bailed Articles,
the provisions relating to loans for consumption shall
apply mutatis mu-
tandis: Provided, That if no time for its return has been fixed by the
contract, the bailor may at any time demand
its return.
SECTION 13 Partnership
Article 703 (Definition of Partnership)
(1) A partnership shall become effective when two or more persons have
agreed to carry on a joint undertaking by making mutual contribution
thereto.
(2) The contribution mentioned in paragraph (1) may be made in cash
or in kind such as other property or labor service.
Article
704 (Partnership-ownership of Partnership Property)
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The contribution made by each partner and the other property of the
partnership shall belong to all the partners jointly.
Article
705 (Liability for any Pecuniary Contribution in Arrears)
If, where the contribution is to be made in cash, a partner delayed in
making his contribution, he shall, besides paying any interest in arrears,
compensate for all damages resulting therefrom.
Article 706 (Method of Managing Partnership Affairs)
(1) If a manager of the partnerships affairs has not been designated by
the
partnership contract, such a manager shall be elected with an af-
firmative vote of not less than two-thirds of all the partners.
(2) The management of the partnership affairs shall be decided by a
majority of the partners. If several managers are appointed
to take
charge of the affairs of the partnership, the management of the affairs
shall be decided by a majority of such managers.
(3) The ordinary affairs of the partnership may, notwithstanding the
provisions of paragraph (2), be managed solely by any partner
or any
manager, as the case may be, acting alone: Provided, That if other
partners or other managers, as the case may be, raises
an objection to
such acts before the completion thereof, he shall immediately suspend
these acts.
Article 707 (Provisions to be Applied Mutatis Mutandis)
The provisions of Articles 681 through 688 shall apply mutatis mutandis
to partners who manage the affairs of the partnership.
Article 708 (Resignation and Removal of Manager of Partnership Affairs)
A partner who manages the partnership affairs may not be allowed to
resign without justifiable reasons and shall not be removed
from the
office except with the unanimous consent of the other partners.
Article 709 (Presumption of Representative Power of Managers)
The partners who manage the partnership affairs shall be presumed to
have a representative power of the management of the partnership
affairs.
Article 710 (Partner's Right to Inspect Affairs and Status of Property of
Partnership)
Each partner may at any time inspect the affairs and status of the
property of the partnership.
Article 711 (Ratio of Sharing of Profit and Loss)
(1) In the absence of an agreement between the partners as to the ratio
10
127 (Supp. 42)
of the sharing of profits and losses, it shall be decided in proportion to
the value of the contribution of each partner.
(2) If the ratio has been fixed as to the sharing of either profits or losses,
such ratio shall be presumed to apply both to profits
and losses.
Article 712 (Creditor's Exercise of Right against Partners)
A creditor of the partnership who was not aware of the
ratio of the sharing
of losses among the partners at the time when his claim came into
existence, may exercise his right against
each partner in equal shares.
Article 713 (Debt of Insolvent Partner and Other Partner's Liabilities)
If any partner does not have
sufficient means to discharge his obligations,
his portion shall be equally divided among other partners.
Article 714 (Effect of
Attachment of Shares)
Attachment of a partner s share shall be effective against the partner s
right to future dividends and return of share.
Article 715 (Prohibition of Set-off by Debtor of Partnership)
A debtor of the partnership cannot set-off his obligation against
a claim
which he has against a partner.
Article 716 (Voluntary Retirement)
(1) If a partnership contract provides for no fixed period of the duration
of the partnership, or if it has been specified therein
that the partnership
shall continue its existence during the life time of the partners, each
partner may retire at any time: Provided,
That he may not, in the absence
of any inevitable reason, retire at a time which would be unfavorable to
the partnership.
(2) Even when a period has been fixed for the duration of the partnership,
each partner may retire, if any inevitable reason exists
therefor.
Article 717 (Non-Voluntary Retirement)
In addition to the cases mentioned in Article 716, a partner shall cease
to be such for any of the following causes:
1. Death;
2. Bankruptcy;
3. Adjudication of incompetency; or
4. Expulsion.
Article 718 (Expulsion)
(1) Expulsion of a partner may be made only with just cause and by the
unanimous consent of all other partners.
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(2) The decision of expulsion mentioned in paragraph (1) can not be set
up against the expelled partner until he is notified of
such a decision.
Article 719 (Settlement of Account of an Ex-Partner's Share)
(1) The accounts between an ex-partner and remaining
partners shall
be settled based on the status of the property of the partnership at the
time when the former ceased to be a partner.
(2) The share of an ex-partner may be paid out in cash irrespective of
the nature of his original contribution.
(3) In a case where of a matter having not been completed at the time
when a partner ceases to be such, the account may be settled
after such
matters have been completed.
Article 720 (Demand to Dissolve Partnership due to Inevitable Reasons)
Any partner may demand dissolution of the partnership if
any inevitable
reasons therefor exists.
Article 721 (Liquidator)
(1) If a partnership is dissolved, the liquidation shall be conducted jointly
by all the partners or by a person appointed by them.
(2) The appointment of a liquidator mentioned in paragraph (1) shall be
decided by a majority of all the partners.
Article 722 (Liquidator's Way of Conducting Partnership Affairs)
The provisions of the latter part of Article 706 (2) shall apply
mutatis
mutandis where there are two or more liquidators.
Article 723 (Resignation and Removal of Liquidator who is Partner)
The
provisions of Article 708 shall apply mutatis mutandis where the
liquidator is appointed from among the partners.
Article 724 (Liquidator's Duties, Powers, and Distribution of Surplus
Assets)
(1) The provisions of Article 87 shall apply mutatis mutandis to the duties
and powers of the liquidator.
(2) The surplus assets shall be distributed among the partners in pro-
portion to the value of their contributions.
SECTION 14 Life Annuity
Article 725 (Definition of Contract of Life Annuity)
A contract of life annuity shall become effective when one of the parties
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129 (Supp. 42)
has agreed to deliver money, or other things, periodically to the other
party or to a third person, until the end of his life or
that of the other
party or the third person.
Article 726 (Computation of Life Annuity)
A life annuity shall be computed by the day.
Article 727 (Rescission of Contract of Life Annuity)
(1) If an obligor on a life annuity neglects to pay the periodical payments
or fails to perform any of his other duties after he has received the principal
of the annuity, the obligee on a life annuity may
demand the return of
such principal: Provided, That in such case, the obligee shall return to
the obligor the balance, after interest
on the principal sum has been
deducted from the periodical payments already received by him.
(2) The provisions of paragraph (1)
shall not preclude any claim for damages.
Article 728 (Rescission and Concurrent Performance)
The provisions of Article 536 shall
apply mutatis mutandis to the cases
mentioned in Article 727.
Article 729 (Death Occurred by any Reason Attributable to Obligor and
Declaration of Continuance of an Obligation)
(1) If death occurs by any reason for which the obligor on a life annuity
is responsible, the court may, upon the application of
the obligee or his
successor, declare that the obligation shall continue to exist for a rea-
sonable period.
(2) The right mentioned in Article 727 may also be exercised even in the
cases of paragraph (1).
Article 730 (Life Annuity due to Testamentary Gift)
The provisions of this Section shall apply mutatis mutandis to a life
annuity
effected by a testamentary gift.
SECTION 15 Compromise
Article 731 (Definition of Compromise)
A compromise shall become effective when the parties have agreed to
terminate a dispute between them by mutual concessions.
Article
732 (Creative Effect of Compromise)
A contract of a compromise shall have the effect that the rights conceded
by one of the parties is thereby extinguished and the
other party will,
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(Supp. 42) 130
in turn, acquire the pertinent rights by virtue of the compromise.
Article 733 (Effect of Compromise and Mistake)
A contract of a compromise may not be canceled on the ground of a mistake:
Provided, That this shall not be the case where such
a mistake is
concerned with the matters relating to the qualification of either party
of a compromise or any matters other than
those which are pertinent to
the dispute subject to the compromise.
CHAPTER MANAGEMENT OF AFFAIRS
Article 734 (Definition of Management of Affairs)
(1) A person who manages affairs on behalf of another without being
bound to
do so shall conduct that management in the manner most
advantageous to the principal according to the nature of such affairs.
(2)
If a manager knows or should have known the intention of the
principal, he shall conduct the management in conformity with the
intention of the principal.
(3) If a manager has managed the affairs in violation of paragraphs (1)
and (2), he shall be liable for the damages caused thereby
even if he was
not guilty of negligence: Provided, That if his act of management conforms
to the public interest, he shall not
be liable for damages unless he was
grossly negligent.
Article 735 (Management of Affairs in Urgency)
If a manager has managed the affairs in order to protect the principal
against an imminent danger to the latter s life, person,
reputation or
property, he shall not be liable for any damages caused thereby, unless
he acted wilfully or with gross negligence.
Article 736 (Manager's Duty to Give Notice)
A manager shall give notice to the principal without delay when he has
commenced to manage his affairs: Provided, That this shall
not be the
case where the principal is already aware thereof.
Article 737 (Manager's Duty to Continue Management)
A manager shall
continue the management until the principal, his
successor or his agent by law is in a position to manage the affairs:
Provided,
That this shall not be the case, if it is evident that such a
10
131 (Supp. 42)
continuance would be against the intention of the principal or would be
prejudicial to the principal s interests.
Article 738 (Provisions to be Applied Mutatis Mutandis)
The provisions of Articles 683 through 685 shall apply mutatis mutandis
to management of affairs.
Article 739 (Manager s Right to Demand Reimbursement of Expenses)
(1) If a manager has defrayed any necessary or useful expenses
on behalf
of the principal, he may demand reimbursement thereof from the principal.
(2) When a manager has assumed on behalf of
the principal an obligation
which is necessary or beneficial to the latter, the provisions of Article
688 (2) shall apply mutatis
mutandis.
(3) If a manager manages the affairs against the principal s intention,
the provisions of paragraphs (1) and (2) shall apply mutatis
mutandis
only to the extent of the principal s present enrichment.
Article 740 (Manager s Right to Claim for Indemnification Suffered
without Negligence)
When a manager has suffered loss caused not by his own negligence in
the course of the management of affairs, he shall be entitled
to claim for
indemnification to the extent that the principal is being enriched thereby.
CHAPTER UNJUST ENRICHMENT
Article 741 (Definition of Unjust Enrichment)
A person who without any legal ground derives a benefit from the property
or services of another and thereby causes loss to the
latter shall be bound
to return such benefit.
Article 742 (Discharge without Obligation)
If a person has discharged an obligation with the knowledge that no such
obligation has ever existed, he may not demand the return
of the subject
matter.
Article 743 (Discharge prior to Due Date)
If an obligor has discharged an obligation which is not due, he may not
demand the return of the subject matter: Provided, That
if the obligor
discharges such obligation by mistake, the obligee shall return the benefit
which he received therefrom.
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Article 744 (Discharge without Olbigation which Conforms to Moral Sense)
In the event that a person, not liable to an obligation,
has discharged
such an obligation by mistake and such discharge conforms to a sense
of morality, he may not demand the return of
the subject matter.
Article 745 (Discharge of Another Person s Obligation)
(1) If, in the event that a person other than the obligor
has discharged
an obligation by mistake, the obligee has in good faith destroyed evidentiary
documents, relinquished any security,
or lost his claim rights by prescrip-
tion, the person who has effected the performance may not demand the
return of his payments.
(2) In the case of paragraph (1), the person who has effected the per-
formance may avail himself of the right to obtain reimbursement
from
the obligor.
Article 746 (Performance for Illegal Cause)
If a person granted property or rendered service for an illegal cause, he
may not demand the return of benefits resulting therefrom:
Provided, That
this shall not be the case if such illegal cause exists only on the part
of the person enriched.
Article 747 (Cases where Original Object is not Returnable, Liability for
Return of Value, and Liability of Subsequent Purchaser)
(1) If the person enriched is unable to return the object itself which he
has received, he shall return the value of the object.
(2) When the person enriched is unable to return the benefit, a third
party acting in bad faith, who has obtained the object or
the benefits
gratuitously from the person enriched, shall be liable to return such objects
in accordance with the provisions of
paragraph (1).
Article 748 (Amount of Benefits to be Returned by Person Enriched)
(1) The person enriched in good faith shall be
liable to act as set forth
in Article 747 to the amount that he still possesses of such benefits.
(2) A person enriched in bad
faith shall return the benefits received by
him together with interest, and if there has been any damage, he shall
be bound also
to make compensation.
Article 749 (Recognition of Bad Faith of Person Enriched)
(1) If the person enriched becomes aware of the fact that no legal ground
had ever existed after he had received such benefit, he shall be liable
to return the benefit as a person enriched in bad faith,
from the time
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133 (Supp. 42)
of his awareness of the above fact.
(2) The person enriched in good faith shall, if defeated in a lawsuit, be
deemed to be a person enriched in bad faith from the time
such action
was filed.
CHAPTER TORTS
Article 750 (Definition of Torts)
Any person who causes losses to or inflicts injuries on another person
by an unlawful act, wilfully or negligently, shall be bound
to make com-
pensation for damages arising therefrom.
Article 751 (Compensation for Non-Economic Damages)
(1) A person who has injured the person, liberty or fame of another or
has
inflicted any mental anguish to another person shall be liable to make
compensation for damages arising therefrom.
(2) The court may order the guilty party to discharge the compensation
mentioned in paragraph (1) by periodical payments, and may
order such
guilty parties to offer reasonable security in order to insure his per-
formance of such obligations.
Article 752 (Consolation Money in a case where of Violation of Life)
A person who has caused the death of another person shall be
liable for
damages to the lineal ascendants, lineal descendants and the spouse,
even where no economic damages exist as a result
thereof.
Article 753 (Minor's Competency)
In the event that a minor has caused damage to another, if he was not
in possession of sufficient intelligence to understand his
responsibility
for the act, he shall not be liable for damages resulting therefrom.
Article 754 (Competency of Person of Mental
Unsoundness)
A person who, while in a state of mental unsoundness, has caused damage
to another, shall not be liable for damages
resulting therefrom: Provided,
That this shall not be the case, if he has brought upon himself his
state of mental unsoundness
either wilfully or negligently.
Article 755 (Liability of Supervisor over Incompetent Person)
(1) In the event that an incompetent
person exempts from liabilities in
accordance with the provisions of Articles 753 and 754, the person who
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is under a legal duty to supervise such incompetent persons shall be
bound to make compensation for damages which the incompetent
person
has caused to a third person: Provided, That this shall not be the case,
if the person so supervising has exercised reasonable
care.
(2) A person who supervises an incompetent person as a substitute for
a person whose duty is to supervise shall also assume
the same liability
as set forth in paragraph (1).
Article 756 (Employer's Liability for Damages)
(1) A person who employs another to carry out an undertaking shall be
bound to make compensation for damages done to a third person
by the
employee in the course of the execution of the undertaking: Provided,
That this shall not be the case, if the employer has
exercised due care
in the appointment of the employee, and the supervision of the undertaking,
or if the damage would have resulted
even if due care had been exercised.
(2) A person who supervises the undertaking in place of the employer
shall also assume the
same liability as set forth in paragraph (1).
(3) In cases of paragraphs (1) and (2), the employer or the supervisor may
exercise
the right to obtain reimbursement from the employee.
Article 757 (Liability of Person who Ordered Work to be Done)
The person who
placed an order for a work to be done shall not be bound
to make compensation for any damages caused to a third person by the
contractor
with respect to such work: Provided, That this shall not be
the case, if the former was guilty of gross negligence in placing the
order, or
in providing instructions therefor.
Article 758 (Liability of Possessor, Owner of Structure, etc.)
(1) If any damages has been caused to another person by reason of
any
defect in the construction or maintenance of a structure, the person in
possession of the structure shall be liable for such
damages: Provided,
That if the person in possession has exercised due care in order to prevent
the occurrence of such damages,
compensation for the damage shall be
made by the owner.
(2) The provisions of paragraph (1) shall apply mutatis mutandis where
there exists any defect in the planting or maintenance of
trees.
(3) In cases of paragraphs (1) and (2), the possessor or the owner may
exercise the right to obtain reimbursement from the
person to whom the
damages are attributable.
10
135 (Supp. 42)
Article 759 (Liability of Possessor of Animals)
(1) The possessor of an animal shall be liable for any damages caused
to another person by the animal: Provided, That this shall
not be the
case, if the possessor has not neglected nor failed to give proper care
according to the species and nature of the animal.
(2) A person who has a custody of an animal in place of the possessor
shall assume the responsibility mentioned in paragraph (1).
Article 760 (Liability of Joint Tort-feasors)
(1) If two or more persons have by their joint unlawful acts caused
damages to another, they shall be jointly and severally liable
to make
compensation for such damages.
(2) The provisions of paragraph (1) shall also apply if it is impossible
to ascertain which of the participants, albeit not joint,
has caused the
damages.
(3) Instigators and accessories shall be deemed to act jointly.
Article 761 (Self-Defense and Act of Necessity)
(1) A person who, in order to protect his own interest or that of a third
person against an unlawful act of another, unavoidably
causes damages
to another person shall not be liable for such damages: Provided, That
the injured party may claim for damages in
respect of the unlawful act.
(2) The provisions of paragraph (1) shall apply mutatis mutandis where
a person unavoidably caused
damages to another person in order to avert
an imminent danger.
Article 762 (Status of Unborn Child in respect of Claims for Damage)
An embryo or fetus shall, in respect of the claim for damages,
be deemed
to have been already born.
Article 763 (Applicable Provisions to be Applied Mutatis Mutandis)
The provisions of Articles 393, 394, 396 and 399 shall apply
mutatis
mutandis to torts claims.
Article 764 (Special Rules which Govern in case of Defamation)
The court may, on the application of the injured party, order the
person
who has impaired another s fame to take suitable measures to restore
the injured party s fame, either in lieu of, or together
with damages.
Inclusion of the publication of apology in newspapers, etc. in the suitable
measures to restore the injured party
s fame in this Article is in violation
of the Constitution according to the decision of limited unconstitutionality
CIVIL ACT
(Supp. 42) 136
by the Constitutional Court which was made on Apr. 1, 1991
Article 765 (Application for Reduction in Compensation Amount)
(1) The
person liable to make compensation in accordance with the
provisions of this Chapter may petition the court for a reduction in the
amount of compensation, if the damages were caused neither intentionally
nor by gross negligence, and such payments of compensation
shall be
a severe hardship to his livelihood.
(2) The court may, if the petition mentioned in paragraph (1) has been
filed, reduce the amount of compensation after a study of
the claimant s
and obligor s respective financial situations and the cause giving rise
to the damages.
Article 766 (Prescription in respect of Right to Claim for Damages)
(1) The right to claim for damages resulting from an unlawful
act shall
lapse by prescription if not exercised within three years commencing
from the date on which the injured party or his
agent by law becomes
aware of such damage and of the identity of the person who caused it.
(2) The provisions of paragraph (1)
shall also apply if ten years have
elapsed from the time when the unlawful act was committed.
PART RELATIVES
CHAPTER GENERAL PROVISION
Article 767 (Definition of Relatives)
A spouse, blood relatives and relatives by affinity shall be considered
as relatives.
Article 768 (Definition of Blood Relatives)
One s lineal ascendants and lineal descendants shall be one s lineal
blood relatives. One s brothers and sisters, brother s and
sister s lineal
descendants, brothers and sisters of one s lineal ascendants and such
brother s and sister s lineal descendants
shall be considered collateral
blood relatives.
Spouses of blood relatives, blood relatives of the spouse, and spouses of
the blood relatives of the spouse shall be relatives by
affinity.
by Act No. 4199, Jan. 13, 1990>
Article 770 (Computation of Degree of Relationship of Blood Relatives)
(1) The number of generations of a lineal blood relative
shall be determined
by computing the number of generations ascending from the person concerned
to his or her ascendant or descending
from him or her to his or her descendant.
(2) The degree of relationship of a collateral blood relative shall be de-
termined by
computing the number of generations ascending from the
person concerned to a lineal ascendant of common origin and then de-
scending
from such lineal ascendants of common origin to his or her
lineal descendant.
Article 771 (Calculation of Degrees of Affinity)
The affinity shall be determined by the degrees to blood relatives from
the spouse for blood relatives of the spouse, and those
to the blood
relative for the spouse of a blood relative.
[This Article Wholly Amended by Act No. 4199, Jan. 13, 1990]
Article 772 (Parental Lineage and Degree of Relationship of Adopted
Child)
(1) Parental lineage and the degree of relationship between an adopted
child on the one hand and the parent by adoption and their
blood relatives
and relatives by affinity on the other, shall be deemed from the time
when an adoption has been made, the same
as those of a child born while
the father and mother are in matrimonial relations.
(2) The degree of relationship of the spouse,
lineal descendant and the
spouse of such lineal descendant, of the adopted child shall be determined
upon the basis of the parental
lineage of an adopted child as prescribed
in paragraph (1).
Articles 773 and 774 Deleted.
(2) In cases where one of husband and wife has died, if the surviving
spouse has remarried, the provisions of paragraph (1) shall
also be ap-
plicable.
(Supp. 42) 138
Article 776 (Extinction of Relationship by Adoption)
Relationships arising due to adoption shall be terminated by annulment
or
dissolution of the adoptive relationship.
Article 777 (Scope of Relatives)
Legal effect taken by relationship of relatives shall extend to those who
fall under any of the following subparagraphs unless this
Act or other
Acts provide otherwise:
1. Blood relatives within the eighth degree of relationship;
2. Affinity relatives within the fourth degree of relationship; and
3. Spouse.
[This Article Wholly Amended by Act No. 4199, Jan. 13, 1990]
CHAPTER SCOPE OF FAMILY MEM-
BERS AND SURNAME AND
ORIGIN OF SURNAME OF
CHILD
Article 778 Deleted.
Article 779 (Scope of Family Members)
(1) Family members shall consist of the following persons:
1. The spouse, lineal blood relatives, and brothers and sisters; and
2. Spouses of the lineal blood relatives, lineal blood relatives of the
spouse, and brothers and sisters of the spouse.
(2) In the case of paragraph (1) 2, it shall be limited to the case where
they share living accommodations.
[This Article Wholly Amended by Act No. 7427, Mar. 31, 2005]
Article 780 Deleted.
139 (Supp. 42)
Provided, That when the parents agree to have the child assume his or
her mother s surname and origin of surname at the time of
filing
a report on their marriage, he or she shall succeed the mother s surname
and origin of surname.
This portion child shall succeed his or her father s surname and origin
of surname in this paragraph was amended by Act No. 7427,
March
31, 2005 (enforced on January 1, 2008) pursuant to the decision of
incompatibility with the Constitution which was made by
the Constitutional
Court on December 22, 2005
(2) Where the father is a foreigner, the child may succeed the mother s
surname and origin of surname.
(3) A child whose father is not known shall assume the mother s surname
and origin of surname.
(4) A child whose father and mother are not known shall, with the approval
of the court, establish a new surname and origin of surname:
Provided,
That if the father or mother is known after the child has established a
new surname and origin of surname, the child
may assume the father
or mother s surname and origin of surname.
(5) Where a child born out of wedlock is affiliated, the child may continue
to use the previous surname and origin of surname subject
to the agreement
of the parents: Provided, That if the parents can not make such an agreement
or fail to reach such an agreement,
the child may continue to use the previous
surname and origin of surname with the approval of the court.
(6) Where there exists
a need to alter the surname and origin of surname
of a child for the welfare of the child, they may be altered with the approval
thereof which the court grants upon a request of the father or mother
or the child itself: Provided, That if the child is a minor
and its
agent by law may not make such a request, the request may be made by
the relative provided for in Article 777 or a public
prosecutor.
[This Article Wholly Amended by Act No. 7427, Mar. 31, 2005]
Articles 782 through 789 Deleted.
(Supp. 42) 140
Article 791 Deleted.
SECTION 1 Matrimonial Engagement
Article 800 (Freedom of Matrimonial Engagement)
Any adult person may freely enter into a matrimonial engagement.
Article 801 (Eligible Age for Matrimonial Engagement)
Any person
who is eighteen years old or older may enter into a matrimonial
engagement upon the consent of his or her parents or guardian. The
provisions of Article 808 shall apply mutatis mutandis to this case.
Article 802 (Matrimonial Engagement for Incompetent)
An incompetent may enter into a matrimonial engagement upon the consent
of
his or her parents or guardian. The provisions of Article 808 shall
apply mutatis mutandis to this case.
Article 803 (Prohibition of Compulsory Performance of Matrimonial
Engagement)
No person may claim to the court for compulsory performance of a ma-
trimonial engagement.
Article 804 (Reasons for Dissolution of Matrimonial Engagement)
In cases where any one of the reasons as provided in the following
subparagraphs is attributable to any one party to a matrimonial en-
gagement, the other party may dissolve such engagement:
1. If one of the parties has been sentenced to punishment of not less
than suspension of qualification;
2. If one of the parties has been adjudicated as incompetent or
quasiincompetent after the conclusion of matrimonial engagement;
10
141 (Supp. 42)
3. If one of the parties has been suffering from venereal disease, incurable
psychosis or any other incurable malignant disease;
4. If one of the parties is engaged to or has married a person other than
the party to the engagement after the conclusion of matrimonial
engagement;
5. If one of the parties has committed adultery with another person
after the conclusion of matrimonial engagement;
6. If the death and life of one of the parties has been unknown for one
year or more after the conclusion of matrimonial engagement;
7. If one of the parties has refused or delayed marriage without due
reason; and
8. If there exists any other serious reason.
Article 805 (Method of Dissolution of Matrimonial Engagement)
Dissolution of a matrimonial
engagement shall be effected by the de-
claration of intention of one party to the other party: Provided, That in
cases where a
party is unable to make any declaration of intention to
the other party, such engagement shall be deemed to have been dissolved
when the cause of such dissolution becomes known to the dissolving party.
Article 806 (Dissolution of Matrimonial Engagement and
Claims for
Damages)
(1) When a matrimonial engagement has been dissolved between parties,
one party may claim against the other party in negligence
the damages
therefrom.
(2) In paragraph (1), the negligent party shall be liable for damages
from mental anguish in addition to property damages.
(3)
Claims for damages from mental anguish may not be assigned or
succeeded: Provided, That this shall not apply to the case where a
contract
concerning indemnity has already been entered into between the parties
or a legal action on a claim for damages has been
instituted.
SECTION 2 Formation of Marriage
Article 807 (Marriageable Age)
CIVIL ACT
(Supp. 42) 142
Any person who is eighteen years old or older may enter into matrimony.
[This Article Wholly Amended by Act No. 8720, Dec. 21, 2007]
Article 808 (Marriage Requiring Consent)
(1) A minor shall obtain the consent of both parents in order to marry.
If one parent is unable to exercise the right of consent,
the minor shall
obtain the consent of the other parent, and if neither parent is able to
exercise the right of consent, the minor
shall obtain the consent of its
guardian.
(2) An incompetent may marry by obtaining the consent of its parents
or guardian.
(3) In cases of paragraphs (1) and (2), if a minor or an incompetent
does not have a parent or guardian, or its parent or guardian
is unable
to give consent, he may marry with the consent of its family council.
[This Article Wholly Amended by Act No. 3051, Dec.
31, 1977]
Article 809 (Prohibition of Consanguineous Marriage, etc.)
(1) A marriage may not be allowed between blood relatives
(including
the blood relatives of an adoptee before full adoption) within the eighth
degree of relationship.
This paragraph was amended by Act No. 7427, March 31, 2005 pursuant
to the decision of incompatibility with the Constitution which
was made
by the Constitutional Court on March 27, 1997
(2) A marriage may not be allowed between the parties who are or were
such relatives by affinity as the spouses of blood relatives
within the
sixth degree of relationship, the blood relatives of the spouse within the
sixth degree of relationship, and the spouses
of blood relatives of the
spouse within the fourth degree of relationship.
(3) A marriage may not be allowed between the parties who were the
blood relatives of adoptive parent line within the sixth degree
of relationship
and the affinity relatives of adoptive parent line within the
fourth degree of relationship.
[This Article Wholly Amended by Act No. 7427, Mar. 31, 2005]
10
143 (Supp. 42)
Article 810 (Prohibition of Bigamy)
No one who has a spouse shall enter into another marriage.
Article 811 Deleted.
(1) A marriage shall take effect by reporting in accordance with the
provisions of the Act on the Registration, etc. of Family Relationship.
(2) The report mentioned in paragraph (1) shall be submitted in writing
with co-signatures of both parties and two adult witnesses.
Article 813 (Examination of Marriage Report)
Marriage report shall be accepted unless a marriage is in violation of
the provisions of Articles 807 through 810 and 812 (2), and
of any other
Acts and subordinate statutes.
(1) A marriage between Korean nationals in a foreign state may be reported
to the Korean Ambassador, Minister, or Consul stationed
in that state.
(2) The Ambassador, Minister, or Consul who has received such a report,
as mentioned in paragraph (1), shall promptly
forward such a report
and any other documents attached thereto to the family registration
offices in the home State which have
jurisdiction over the place of registration
of the nationals concerned.
SECTION 3 Nullity and Annulment of Marriage
Article 815 (Nullity of Marriage)
A marriage is null and void if it falls under any one of the following
subparagraphs: 1. Where there is no agreement to marry between the parties;
2. Where the marriage is in violation of Article 809 (1);
3. Where there exists or existed between the parties the relationship
of lineal relatives by affinity; and
CIVIL ACT
(Supp. 42) 144
4. Where there existed between the parties the relationship of lineal
blood relatives of adoptive parent line.
Article 816 (Causes for Annulment of Marriage)
A claim to the court for annulment of a marriage may be made under
any one of the following subparagraphs:
1. Where a marriage is in violation of the provisions of Articles 807
through 809 (excluding the cases falling under the nullity
of marriage
under Article 815; hereafter in Articles 817 and 820 the same shall
apply) or 810;
2. When at the time of marriage one of the parties was unaware that
the other party had been suffering from a malignant disease or
had
any other serious reason which would make marital life unable to con-
tinue; and
3. When the declaration of intention to marry has been made by fraud
or duress.
Article 817 (Claimant for Annulment of Marriage in Violation of Mar-
riageable Age, etc.)
In the case of a marriage in violation of the provisions of Articles 807
and 808, a claim for annulment of the marriage to the court
may be
made by either party or agent by law thereof. In case of a marriage in
violation of the provisions of Article 809, a claim
for annulment of the
marriage to the court may be made by either party, their lineal ascen-
dants or collateral blood relatives
within the fourth degree of relationship.
Article 818 (Claimant for Annulment of Bigamy)
In the case of marriage in violation of the provisions of Article 810, a
claim for annulment of the marriage to the court may be
made by either
party, the spouse, the lineal ascendants, the collateral blood relatives
within the fourth degree of relationship,
or a public prosecutor.
[This Article Wholly Amended by Act No. 7427, Mar. 31, 2005]
Article 819 (Extinguishment of Right of Claim
for Annulment of Marriage
without Consent)
10
145 (Supp. 42)
In the case of a marriage in violation of the provisions of Article 808,
no claim for annulment of the marriage may be made, if
three months
have elapsed from the day on which the minor party had attained the
age of 20 or the adjudication of incompetency
of the party concerned
had been canceled, or if the female party has become pregnant during
the marriage.
In the case of a marriage in violation of the provisions of Article 809,
no claim for annulment of the marriage may be made, if
the female
party has become pregnant during the marriage.
Article 821 Deleted.
No claim for annulment of a marriage may be made on the ground of
causes falling under the provisions of subparagraph 2 of Article
816, if
six months have elapsed from the day when one party became aware
that the other party had such cause.
Article 823 (Extinguishment of Right of Claim for Annulment of Marriage
by Fraud or Duress)
No claim for annulment of a marriage by fraud or duress may be made,
if three months have elapsed from the day when the party discovered
the
fraud, or became free from the duress.
Article 824 (Effect of Annulment of Marriage)
The annulment of a marriage shall not be retrospectively effective.
Article 824-2 (Annulment of Marriage, Fosterage of Children,
etc.)
The provisions of Articles 837 and 837-2 shall apply mutatis mutandis
with respect to the responsibility of fostering children
and the visitation
right in the case of the annulment of a marriage.
[This Article Newly Inserted by Act No. 7427, Mar. 31, 2005]
Article 825 (Annulment of Marriage and Right to Claim Damages)
The provisions of Article 806 shall apply mutatis mutandis in a
case of
CIVIL ACT
(Supp. 42) 146
the nullity and annulment of a marriage.
SECTION 4 Effect of Marriage
Sub-Section 1 General Effect
Article 826 (Duties of Husband and Wife)
(1) Husband and wife shall live together, and shall support, and aid
each other: Provided, That both parties must tolerate, if they
do not
live together temporarily for a due reason.
(2) The place where husband and wife reside, shall be determined by
an agreement between them: Provided, That if they fail to reach
an
agreement, the place shall be determined by the Family Court upon a
request of either party.
Article 826-2 (Attaining Majority by Marriage)
If a minor enters into marriage, he shall be deemed to have attained
majority.
[This Article Newly Inserted by Act No. 3051, Dec. 31, 1977]
Article 827 (Right of Representation between Husband and Wife for
Home Affairs)
(1) Husband and wife shall exercise the right of representation for each
other on normal home affairs.
(2) Restriction upon the right of representation as mentioned in paragraph
(1) shall not be set up against a third party acting
in good faith.
Article 828 (Revocation of Contract Entered between Husband and Wife)
A contract entered into between husband and
wife may be revoked by
either party at any time during the marriage: Provided, That the right
of a third party may not be prejudiced
thereby.
Sub-Section 2 Effect on Property
10
147 (Supp. 42)
Article 829 (Agreement and its Alteration on Matrimonial Property)
(1) If husband and wife have not, prior to the formation of marriage,
entered into a contract which provides otherwise with respect to their
property, their property relation shall be governed by the
provision of
each Article of this Sub-Section.
(2) If husband and wife have, prior to the formation of marriage, entered
into a contract with respect to their property, such contract
may not
be altered during the marriage: Provided, That if there is a due reason
to alter such contract, it may be altered upon
approval of the court.
(3) If, in a case where one spouse manages the property of the other
in accordance with the contract referred
to in paragraph (2), and such
property is imperiled by mismanagement, the other spouse may claim
to the court for permission of
its own management. In this case, if such
property is common property between husband and wife, the other spouse
may claim to the
court for the division of such property.
(4) If husband and wife have entered into a contract regarding their
property, such contract
may not be enforced against a successor in title
of the husband or wife or a third party unless it is registered prior to
the formation
of their marriage.
(5) If the manager has been changed or a division of property in coownership
has been effected in accordance with paragraphs (2)
and (3) or by a contract,
such change or division may not be enforced against a successor in title
of the husband or wife or against
a third party unless it has been registered.
Article 830 (Peculiar Property and Property of which Title is Uncertain)
(1) Inherent
property belonging to either husband or wife from the time
before the marriage and property acquired during the marriage in his
or her own name shall constitute his or her peculiar property.
(2) Any property, of which title is uncertain between the husband
and
wife, shall be presumed to be in their co-ownership.
CIVIL ACT
(Supp. 42) 148
Article 831 (Management, etc. of Peculiar Property)
Husband or wife shall separately manage, use and take profit from his
or her
peculiar property.
Article 832 (Joint Liability for Obligations with respect to Home Affairs)
If, with respect to normal home affairs, one spouse has
effected a juristic
act with a third person, the other spouse shall be jointly and severally
liable for the obligation therefrom:
Provided, That this shall not apply
where a previous notice, to the effect that the other spouse will not
assume such liability,
has been clearly given to the third person.
Article 833 (Living Expenses)
The expenses necessary for communal life of husband and wife shall be
jointly and severally borne by them, unless a special stipulation
has
been made between them.
[This Article Wholly Amended by Act No. 4199, Jan. 13, 1990]
SECTION 5 Divorce
Sub-Section 1 Divorce by Agreement
Article 834 (Divorce by Agreement)
Husband and wife may get a divorce by agreement.
Article 835 (Divorce by Agreement for Incompetent Person)
The provisions of Article 808 (2) and (3) shall apply mutatis mutandis
to a divorce by agreement for an incompetent person.
[This Article Wholly Amended by Act No. 4199, Jan. 13, 1990]
Article 836
(Taking Effect of Divorce and Method of Reporting)
(1) Divorce by agreement shall take effect upon reporting in accordance
with
the Act on the Registration, etc. of Family Relationship after obtaining
the confirmation of the Family Court.
(2) The report as mentioned in paragraph (1) shall be filed in writing
10
149 (Supp. 42)
with joint signatures of both parties and two adult witnesses.
Article 836-2 (Procedure of Divorce)
(1) Any person who intends to get a divorce by agreement shall have
a guidance on divorce provided by the Family Court and, if necessary,
the Family Court may recommend to take counsel with a professional
counselor who has expertise and experiences in counseling.
(2) The party who filed an application for the confirmation of intention to
divorce with the Family Court may have the confirmation
of intention
to divorce after the periods, prescribed by the following subparagraphs,
have passed since the day of having such
guidance referred to in paragraph
(1):
1. Three months, if the party has any child to take care of (including an
unborn child; hereafter the same shall apply in this Article);
or
2. One month, if not falling under subparagraph 1.
(3) The Family Court may exempt the party from or reduce the period
under paragraph
(2), when there are such urgent circumstances to proceed
a divorce as the party s unbearable suffering may be expected due to domestic
violence.
(4) The party who has any child to take care of shall submit the documents
of agreement on fostering under Article 837 and decision
of custody under
Article 909 (4) or the original copy of adjudication of the Family Court
under Articles 837 and 909 (4).
(5) The Family Court shall estalbish a child support order to confirm the
details of child support agreed between parties. In such
cases, with respect
to the effect of the child support order, Article 41 of the Family Litigation
Act shall apply mutatis mutandis.
(Supp. 42) 150
their children. 1. Decision on the custodian;
2. Child support; and
3. Visitation right and methods thereof.
(3) Where the agreement as set forth in paragraph (1) harms children s
welfare, the Family
Court shall order correction or decide ex officio matters
related to fostering, taking consideration of children s intention and
age,
each parent s financial status and other circumstances.
(4) Where the agreement on fostering cannot or would not be made, the
Family Court shall decide it upon a request of the party or
ex officio. In
such cases, the Family Court shall take matters as set forth in para graph
(3) into account.
(6) Except for matters related to fostering, the provisions of paragraphs (3)
through (5) shall not change the rights and duties
of parents.
Article 837-2 (Visitation Rights)
(1) A parent who does not take care of children and his/her children shall
have the visitation right.
[This Article Newly Inserted by Act No. 4199, Jan. 13, 1990]
Article 838 (Claims for Revocation of Divorce by Fraud and Duress)
10
151 (Supp. 42)
Any person who has declared intention of divorce by fraud or duress may
claim to the Family Court for revocation of divorce.
Article 839 (Provisions to be Applied Mutatis Mutandis)
The provisions of Article 823 shall apply mutatis mutandis to the cases
of divorce by agreement.
Article 839-2 (Claim for Division of Property)
(1) One of the parties who have been divorced by agreement, may claim
a division of property against the other party.
(2) If no agreement is made for a division of property as referred to in
paragraph (1), or if it is impossible to reach an agreement,
the Family
Court shall, upon a request of the parties, determine the amount and
method of division, considering the amount of property
acquired by cooper-
ation of both parties and other circumstances.
(3) The claim for division of property as referred to in paragraph (1)
shall be extinguished after two years have passed from the
date of divorce.
[This Article Newly Inserted by Act No. 4199, Jan. 13, 1990]
Article 839-3 (Right to Revoke Fraudulent Act for
Preservation of Claim
for Division of Property)
(1) When a party files a legal act for a property right, knowing that such
act may obstruct the other party s exercise of a claim
for division of property,
the other party may file a lawsuit demanding a revocation of such act
and recovery therefrom with the
Family Court with Article 406 (1) applied
mutatis mutandis.
(2) Such lawsuits as set forth in paragraph (1) shall be filed within the
period as set forth in Article 406 (2).
[This Article Newly Inserted by Act No. 8720, Dec. 21, 2007]
CIVIL ACT
(Supp. 42) 152
Sub-Section 2 Judicial Divorce
Article 840 (Causes for Judicial Divorce)
Either husband or wife may apply to the Family Court for a divorce in
each case of the following subparagraphs:
1. If the other spouse has committed an act of unchastity;
2. If one spouse has been maliciously deserted by the other spouse;
3. If one spouse has been extremely maltreated by the other spouse or
his or her lineal ascendants;
4. If one spouse s lineal ascendant has been extremely maltreated by
the other spouse;
5. If the death or life of the other spouse has been unknown for three
years; and
6. If there exists any other serious cause for making it difficult to continue
the marriage.
Article 841 (Extinguishment of Right to Apply for Divorce due to Unchas-
tity)
With respect to the cause mentioned in subparagraph 1 of Article 840,
if the spouse has given a previous consent or an ex post facto
tolerance
to the other party, or if six months have passed since the spouse was
aware of such act of unchastity of the other, or
if two years have passed
since the happening of such event, the spouse may not apply to the
court for a divorce.
Article 842 (Extinguishment of Right to Apply for Divorce due to Any
Other Reason)
With respect to the cause as provided in subparagraph 6 of Article 840,
one spouse may not apply to the court for divorce after
the lapse of six
months since the day when the spouse became aware of such cause, or
after the lapse of two years since such cause
has occurred.
10
153 (Supp. 42)
Article 843 (Provisions to be Applied Mutatis Mutandis)
The provisions of Articles 806, 837, 837-2 and 839-2 shall apply mutatis
mutandis to the case of judicial divorce.
CHAPTER PARENTS AND CHILDREN
SECTION 1 Children of Natural Parent
Article 844 (Presumption as Husband s Child)
(1) A child conceived by a wife during the marriage shall be presumed
to be the child of the wife s husband.
(2) A child born after two hundred days from the day when the marriage
was formed or born within three hundred days from the day
when the
matrimonial relation was terminated, shall be presumed to have been
conceived during the marriage.
Article 845 (Determination of Paternity by Court)
If a woman who has remarried gives birth to a child, and it is impossible
to
determine the father of the child in accordance with the provisions
of Article 844, the court shall, upon the application of the
party concerned,
determine the paternity of the child.
Either of husband and wife may, in any case mentioned in Article 844,
bring an action to deny that he is the natural father of the
child.
Article 847 (Action of Denial of Paternity)
(1) The action of denial of paternity shall be brought by the husband
or wife against the other spouse or the child within two years
from the
day when he or she becomes aware of the cause of the action.
This paragraph is amended by Act No. 7427, March 31, 2005
pursuant
to the decision of incompatibility with the Constitution which was made
by the Constitutional Court on March 27, 1997
(2) In the case of paragraph (1), if both of the other spouse and the
child against whom the action is to be brought has died, the
action of
denial of paternity may be brought against a public prosecutor within
two years from the day on which he or she becomes
aware of the death.
[This Article Wholly Amended by Act No. 7427, Mar. 31, 2005]
Article 848 (Incompetent s Action of Denial of
Paternity)
10
155 (Supp. 42)
(1) If the husband or wife is a person adjudged incompetent, his or her
guardian may, upon the consent of the family council, bring
an action
of denial of paternity of a child.
If the husband or wife has expressed an intention of denial of paternity
by will, the executor of the will shall bring an action
of denial of paternity.
Article 851 (Death of Husband before Birth of Child, etc. and Denial of
Paternity)
If the husband dies before the birth of a child or the husband or wife
dies within the period mentioned in Article 847 (1), only
the lineal ascendant
or lineal descendant of the husband or wife may bring an action of denial
of paternity within two years from
the day on which he or she becomes
aware of the death.
[This Article Wholly Amended by Act No. 7427, Mar. 31, 2005]
Article 852 (Extinction of Right of Denial of Paternity)
Any person
who recognizes the paternity of a child after the child is
born may not bring an action of denial of the paternity again.
[This
Article Wholly Amended by Act No. 7427, Mar. 31, 2005]
Article 853 Deleted.
(1) A child born out of wedlock may be affiliated by its natural father
or mother. When the marriage of the parent becomes null
and void, the
child born between them shall be deemed to be a child born out of wedlock.
(2) A child born out of wedlock, when
its father and mother marry, shall
be deemed to be a child born during the marriage from the time of the
marriage.
Article 856 (Affiliation by Incompetent)
CIVIL ACT
(Supp. 42) 156
If a father is a person adjudged incompetent, he may affiliate himself
as being the father of his child with the consent of the
guardian.
Article 857 (Affiliation of Deceased Child)
Even after a child has died, if its lineal descendant survives, it may be
affiliated as the lawful child.
Article 858 (Affiliation of Unborn Child)
A father may affiliate an unborn child.
Article 859 (Effectiveness of Affiliation)
(1) Affiliation shall become effective when it is reported in accordance
with the provisions of the Act on the Registration, etc.
of Family
Relationship.
Article 860 (Retrospective Effect of Affiliation)
Affiliation shall be retrospectively effective from the time of birth of the
child: Provided, That the right acquired by a third person shall not be
prejudiced thereby.
Article 861 (Revocation of Affiliation)
If affiliation has been made by fraud, duress or grave mistake, its revocation
may be claimed to the Family Court within six months
from the day when
such fraud or mistake becomes known, or such duress disappears.
Article 862 (Action of Demurrer against Affiliation)
A child or any other person interested may bring an action of demurrer
against
an affiliation within one year from the day when it becomes
aware of a report of such affiliation.
Article 863 (Action Demanding Affiliation)
A child, any of its lineal descendants or the agent by law of any of them,
may bring an action against its father or mother demanding
affiliation
by its father or mother.
Article 864 (Death of Father or Mother and Action Demanding Affiliation)
In the cases mentioned in Articles 862 and 863, if the
father or mother
of a child has died, an action of demurrer or action demanding affiliation
may be brought against the public prosecutor
within two years from
the day when the death of the father or mother becomes known.
Article 864-2 (Affiliation and Responsibility of Fostering Child, etc.)
The provisions of Articles 837 and 837-2 shall apply mutatis
mutandis
10
157 (Supp. 42)
with respect to the responsibility of fostering a child and the visitation
right in the case of the affiliation of the child.
[This
Article Newly Inserted by Act No. 7427, Mar. 31, 2005]
Article 865 (Action Demanding Confirmation of Denial or Existence of
Paternity
due to Any Other Reasons)
(1) A person who may bring an action in accordance with the provisions
of Articles 845, 846, 848, 850, 851, 862 and 863, may bring
an action
demanding confirmation of denial or the existence of paternity for any
reason other than those mentioned in the aforesaid
Articles.
(2) In the cases mentioned in paragraph (1), if the party concerned has
died, the other party may bring an action against
the public prosecutor
within two years from the day when it becomes aware of such death.
SECTION 2 Adoption
Sub-Section 1 Requisites for Adoption
Article 866 (Capacity for Adoption)
Any person who has attained majority may adopt another as his child.
Articles 867 and 868 Deleted.
(1) The person to be adopted shall obtain the consent of his parents,
and if such consent cannot be obtained from the parents due
to death
or any other cause, consent of any other lineal ascendant, if any, shall
be obtained.
(2) In the case of paragraph (1), if there are several lineal ascendants,
the priority shall be put on the closest ascendant, and
if there are several
persons in the same order, the priority shall be put on the oldest person.
Article 871 (Consent to Adoption of Minor)
If the person to be adopted has not attained majority and he has neither
10
157 (Supp. 42)
parents nor any lineal ascendants, he shall obtain the consent of his
guardian: Provided, That the permission by the Family Court
shall be
obtained upon the consent of guardian.
A guardian shall obtain the permission of the Family Court, if he adopts
his ward.
An incompetent person may, upon the consent of his guardian, adopt a
child or may be adopted by another.
Article 874 (Joint Adoption of Husband and Wife)
(1) When a person who has a spouse, adopts a child, he or she shall
do it jointly with his or her spouse.
(2) When a person who has a spouse, is adopted, he or she shall obtain
the consent of the other party.
[This Article Wholly Amended by Act No. 4199, Jan. 13, 1990]
Articles 875 and 876 Deleted.
(1) No ascendant or person of elder age may be adopted.
(2) Deleted.
Article 878 (Effectiveness of Adoption)
(1) An adoption shall become effective when it is reported under the
Act on the Registration, etc. of Family Relationship.
(2) The report mentioned in paragraph (1) shall be made in writing
with joint signatures of both parties and two adult witnesses.
Articles 879 and 880 Deleted.
Adoption report shall be accepted unless the adoption is in violation of
the provisions of Articles 866 through 877, and 878 (2)
and any other
Acts and subordinate statutes.
The provisions of Article 814 shall apply mutatis mutandis to the cases
of adoption.
Sub-Section 2 Nullity and Annulment of Adoption
Article 883 (Causes of Nullity of Adoption)
An adoption shall be null and void if it falls under any of the following
CIVIL ACT
(Supp. 42) 158
subparagraphs:
1. Where there is no agreement to an adoption between the parties;
and
2. Where an adoption is in violation of the provisions of Articles 869
and 877 (1).
Article 884 (Causes of Annulment of Adoption)
If an adoption falls under any of the following subparagraphs, a claim
for annulment may be made to the Family Court:
1. Where an adoption is in violation of the provisions of Articles 866
and 870 through 874;
2. Where there is no knowledge of the fact, at the time of adoption, that
the child to be adopted or the adopting person has been
suffering
from a malignant disease or has had any other serious cause; and
3. Where an intention of adoption was expressed by fraud or duress.
Article 885 (Claimants for Annulment of Adoption)
If an adoption
has been made in violation of the provisions of Article
866, a claim for annulment of said adoption may be made to the court
by
the adoptive parent, adopted child or his agent by law and lineal blood
relative.
[This Article Wholly Amended by Act No. 4199, Jan. 13, 1990]
Article 886 (Claimants for Annulment of Adoption)
If an adoption has
been made in violation of the provisions of Article
870, the person entitled to give consent to the adoption may claim annulment
of said adoption to the court, and if an adoption has been made in violation
of the provisions of Article 871, the adopted child
or the person entitled
to give consent to the adoption may claim annulment to the court.
Article 888 (Claimants for Annulment of Adoption)
If an adoption has been made in violation of the provisions of Article
10
159 (Supp. 42)
874, a claim for annulment may be made by the spouse.
[This Article Wholly Amended by Act No. 4199, Jan. 13, 1990]
Article 889
(Extinction of Right to Claim for Annulment of Adoption)
If an adoption is in violation of the provisions of Article 866, no claim
for annulment may be made to the court after the adoptive parents
have reached their majority.
Article 890 Deleted.
Article 892 (Extinction of Right to Claim for Annulment of Adoption)
If an adoption is in violation of the provisions of Article
872, no claim
for annulment may be made to the court, if six months have elapsed
after closing of the management account by the
termination of guardianship.
Article 893 (Extinction of Right to Claim for Annulment of Adoption)
If an adoption is in violation
of the provisions of Article 873, no claim
for annulment may be made after the lapse of three months from the
time when the adjudication
of incompetency has been revoked.
Article 894 (Extinction of Right to Claim for Annulment of Adoption)
If an adoption is in violation
of the provisions of Article 870 or 874, no
claim for annulment may be made to the court after the lapse of six
months from the
day when the adoptive parent became aware of any
cause thereof, or after the lapse of one year from the day when any cause
thereof
occurred.
Article 895 Deleted.
Article 897 (Provisions to be Applied Mutatis Mutandis)
The provisions of Article 823 and 824 shall apply mutatis mutandis to
the
cases of annulment of adoption, and the provisions of Article 806
CIVIL ACT
(Supp. 42) 160
shall apply mutatis mutandis to the case of nullity or annulment of
adoption.
Sub-Section 3 Dissolution of Adoptive Relation
() Dissolution of Adoptive Relation by Agreement
Article 898 (Dissolution of Adoptive Relation by Agreement)
(1) The Adoptive parent and the adopted child may, by agreement, dissolve
the adoptive relation.
(2) Deleted.
Article 899 (Dissolution of Adoptive Relation by Agreement for Persons
under Fifteen Years of Age)
(1) If an adopted child is under fifteen years of age, the person who
assented to the adoption in accordance with the provisions
of Article
869 shall consult, on behalf of the adopted child, with the adoptive parent
regarding dissolution of the adoption: Provided,
That if the person who
assented to the adoption is unable to consult, due to death or any other
reason, such consultation shall
be made by another lineal ascendant of
the adopted child s native family.
[This Article Wholly Amended by Act No. 4199, Jan. 13, 1990]
Article 902 (Dissolution of Adoptive Relation by Agreement for
Incompetent)
If the adoptive parent or adopted child is an incompetent person, it may
enter into a consultation for dissolution of adoptive relation
upon the
consent of its guardian.
10
161 (Supp. 42)
Article 903 (Examination of Report of Dissolution of Adoptive Relation)
The report of dissolution of the adoptive relation shall
be accepted unless
the dissolution is in violation of the provisions of Articles 878 (2) and
898 through 902 or any other Acts
and subordinate statutes.
Article 904 (Provisions to be Applied Mutatis Mutandis)
The provisions of Articles 823 and 878 shall
apply mutatis mutandis
to the cases of the dissolution of adoptive relation by agreement.
() Judicial Dissolution of Adoptive Relation
Article 905 (Cause for Judicial Dissolution of Adoptive Relation)
Either the adoptive parent or the adopted child may, if either
of them
has cause mentioned in any of the following subparagraphs, claim to the
Family Court for dissolution of adoptive relation:
1. If one party has committed grave negligence, such as impairing family
honor or dissipating property;
2. If one party has been extremely maltreated by the other or its lineal
ascendant;
3. If one party s lineal ascendant has been extremely maltreated by the
other party;
4. If the death or life of the adopted child has been unknown for three
years or more; and
5. If there exists any other serious cause with which it is difficult for
either party to continue the adoptive relationship.
Article
906 (Provisions to be Applied Mutatis Mutandis)
The provisions of Article 899 through 902 shall apply mutatis mu tandis
to the
cases of application for judicial dissolution of adoptive relationship.
Article 907 (Extinction of Right to Claim for Dissolution of Adoptive
Relation)
No claim of the dissolution of adoptive relation may be made with the
cause falling under the provisions of subparagraphs 1 through
3 and 5
of Article 905, after the lapse of six months from the day when the party
becomes aware of such cause, or after the lapse
of three years from the
CIVIL ACT
(Supp. 42) 162
day when such cause occurs.
Article 908 (Dissolution of Adoptive Relation and Right to Claim Damages)
The provisions of Article 806 shall apply mutatis mutandis
to the cases
of judicial dissolution of adoptive relation.
Sub-Section 4 Full Adoption
Article 908-2 (Requisites, etc. for Full Adoption)
(1) Any person who intends to make the full adoption of a child shall
make a
request to the Family Court for such full adoption after meeting
the following requirements:
1. The adoption shall be made jointly by the husband and wife who
are married for three years or more: Provided, That where either
of
the husband and wife who are married for one year or more makes
the full adoption of the other spouse s child as his or her
one, the
same shall not apply;
2. The child to be adopted shall be under the age of fifteen;
3. Consent to such adoption shall be obtained from the natural parents
of the child to be adopted: Provided, That if such consent
cannot
be obtained due to the loss of the parental authority or the death of
the parents or any other cause, the same shall not
apply; and
4. Assent to such adoption shall be obtained from the child s agent by
law pursuant to Article 869.
(2) The Family Court may reject the request of paragraph (1) if it deems
that such full adoption is not appropriate for the welfare
of the child
to be adopted, taking into consideration the situation of the child s
upbringing, the motives of such full adoption,
the competence of the
prospective adoptive parents for bringing up the child, and other
circumstances.
[This Article Newly Inserted by Act No. 7427, Mar. 31, 2005]
Article 908-3 (Effect of Full Adoption)
(1) The child adopted through full adoption shall be deemed to be born
during the marriage of the adoptive parents.
(2) Relationships of the adopted child before such full adoption shall be
terminated at the time when such full adoption is decided
upon such a
request as provided for in Article 908-2 (1): Provided, That where one
of husband and wife has made the full adoption
of the other spouse s
10
163 (Supp. 42)
child as his or her one independently, the same shall not apply with
respect to the relationship of the child with the other spouse
and the
other spouse s relatives.
[This Article Newly Inserted by Act No. 7427, Mar. 31, 2005]
Article 908-4 (Annulment, etc. of Full Adoption)
(1) If a natural father or mother of the child who is adopted through
full adoption failed to be concerned in such consent as referred
to in the
proviso of Article 908-2 (1) 3 due to any cause not attributable to
himself or herself, he or she may make a request
to the Family Court
for annulment of such full adoption within six months from the day when
he or she becomes aware of such adoption.
(2) The provisions of Articles 883 and 884 shall not apply with respect
to full adoption.
[This Article Newly Inserted by Act No. 7427, Mar. 31, 2005]
Article 908-5 (Dissolution of Full Adoption)
(1) The adoptive parent, adopted child, natural father or mother, or
public prosecutor may apply to the Family Court for the dissolution
of
the full adoption in each case of the following subparagraphs:
1. Where the adoptive parent has abused or deserted the adopted child
or otherwise has severely impaired the welfare of the adopted
child;
and
2. Where it is impossible to maintain the relation of the full adoption
due to any act of immoral conduct which the adopted child
has committed
against the adoptive parent.
(2) The provisions of Articles 898 and 905 shall not apply with respect
to the dissolution of full adoption.
[This Article Newly Inserted by Act No. 7427, Mar. 31, 2005]
Article 908-6 (Provisions to be Applied Mutatis Mutandis)
The provisions
of Article 908-2 (2) shall apply mutatis mutandis with
respect to the annulment of full adoption or the request for dissolution
of full adoption under Article 908-5 (1) 2.
[This Article Newly Inserted by Act No. 7427, Mar. 31, 2005]
Article 908-7 (Effect of Annulment and Dissolution of Full Adoption)
(1) If a full adoption is annulled or dissolved, the adoptive relation
CIVIL ACT
(Supp. 42) 164
shall be terminated and the relationship of relatives before such full
adoption shall be reestablished.
(2) In the case of paragraph (1), the annulment of full adoption shall
not be effective retroactively.
[This Article Newly Inserted by Act No. 7427, Mar. 31, 2005]
Article 908-8 (Provisions to be Applied Mutatis Mutandis)
Except as
otherwise provided in this Sub-Section, the provisions of adoption
shall apply mutatis mutandis with respect to full adoption unless
they
are contrary to the nature of such full adoption.
[This Article Newly Inserted by Act No. 7427, Mar. 31, 2005]
SECTION 3
Parental Authority
Sub-Section 1 General Provisions
Article 909 (Custodian)
(1) Parents shall have the parental authority of their minor child. In
cases of an adopted child, the adoptive parents shall have
the parental
authority.
(4) If a child born out of wedlock is legally recognized and his parents
are to be divorced, the custodian shall be determined by
an agreement
between the parents, and, if such agreement cannot or would not be made,
the Family Court shall designate the custodian
upon the request of the
parties or ex officio: Provided, That if the agreement between the parents
harms children s welfare, the
Family Court shall order to correct it or ex
officio decide the custodian.
(5) In cases of the annulment of marriage, judicial divorce, or action de-
manding affiliation, the Family Court shall ex officio
determine the
custodian.
165 (Supp. 42)
alter the person of the parental authority to the other party upon request
of a relative of the child within the fourth degree of
relationship.
[This Article Wholly Amended by Act No. 4199, Jan. 13, 1990]
Article 910 (Exercise of Child s Parental Authority)
A person of parental
authority shall exercise, in place of the child subject
to his or her parental authority, parental authority over children of such
child.
Article 911 (Agent by Law of Minor Child)
The parent who exercises parental authority shall become the agent by
law of his or her minor child.
Article 912 (Standards for Exercise of Parental Authority)
In exercising parental authority, priority shall be given to the welfare
of a child.
[This Article Newly Inserted by Act No. 7427, Mar. 31, 2005]
Sub-Section 2 Effect of Parental Authority
Article 913 (Rights and Duties to Protect and Educate Child)
A person of parental authority shall have rights and duties to protect
and educate his or her child.
Article 914 (Right to Designate Place of Residence)
A child shall reside at a place designated by a person of parental authority.
Article 915 (Right to Take Disciplinary Action)
The person of parental authority may, in order to protect or educate his
or her child, take necessary disciplinary action against
the child, and
may entrust such child to a reformatory or correctional institution upon
the approval of the court.
Article 916 (Child s Peculiar Property and Management thereof)
Any property acquired under the name of a child shall be peculiar
property
of the child, and such property shall be managed by the person of parental
authority who is the agent by law of the child.
Article 917 Deleted.
CIVIL ACT
(Supp. 42) 166
(2) If, in case of paragraph (1), the third party has not designated a
manager for the property, the court will appoint a manager
upon the
application of the child to whom the property has been gifted, or of any
of its relatives pursuant to the provisions of
Article 777.
(3) The same shall apply as prescribed in the preceding paragraph if,
in a case where the authority of the manager
designated by the third
party has been terminated, or if it becomes necessary to change manager,
but the third party fails to appoint
a new manager.
(4) The provisions of Article 24 (1), (2) and (4), former part of Article
25 and Article 26 (1) and (2) shall apply
mutatis mutandis to the cases
of paragraphs (2) and (3).
Article 919 (Mutatis Mutandis Application of Provisions concerning
Mandate)
The provisions of Articles 691 and 692 shall apply mutatis mutandis to
the cases of property management as provided in Articles
916, 917,
and 918.
Article 920 (Right of Representation by Person of Parental Authority
with respect to Child s Property)
The person of parental authority who is the agent by law of the child
shall represent the child on juristic acts concerning the
property of the
child: Provided, That if an obligation is to be assumed requires any act
of the child the consent of the child
itself shall be obtained.
Article 920-2 (Effect of Act done under Joint Names by One of Persons
of Joint Parental Authority)
If both parents have parental authority, and one parent, under the
names of both parents, represents its child or consents to a
juristic act
of the child, such representation or consent shall be valid even though
it is contrary to the intention of the other
parent except for the case
where the other party is in bad faith.
[This Article Newly Inserted by Act No. 4199, Jan. 13, 1990]
Article 921 (Acts of Conflicting Interest between Person of Parental
Authority and Child, or among Children)
(1) If a person of parental authority, who is the agent by law of a child,
is to perform acts of conflicting interest between himself
or herself and
his or her child, he or she shall apply to the court for appointment of
a special representative on behalf of the
child.
(2) In a case where a person of parental authority, who is the agent
10
167 (Supp. 42)
by law of children, is to perform acts in which the interests of one child
conflict with those of the other child or children, the
person of parental
authority shall, on behalf of one party, apply to the court for appointment
of a special representative.
If a person of parental authority exercises the right of representation
on juristic acts or the right of property management for
the children
under his or her parental authority, he or she shall exercise such authority
with the same care and diligence as he
or she would do so on any acts
regarding his or her own property.
Article 923 (Account of Property Management)
(1) When the parental authority of a person who is the agent by law
of a child has been extinguished, the person who has been exercising
parental
authority shall render an account of the property management of the
child.
(2) In case of paragraph (1), the benefits accrued from the child s property
shall be deemed to have been set-off against the expenses
from bringing
up the child and from managing the property: Provided, That this shall
not apply to a property with which a third
party, in gifting it to the child,
has declared an intention contrary to such set-off.
Sub-Section 3 Loss of Parental Authority
Article 924 (Adjudication of Loss of Parental Authority)
If a parent abuses parental authority or is guilty of gross misconduct,
or there exists any other serious reason for not allowing the parent to
exercise parental authority, the court may, upon the application
of any
of the child s relatives pursuant to the provisions of Article 777 or of
a public prosecutor, adjudge the loss of parental
authority.
Article 925 (Adjudication of Loss of Right of Representation and
Management)
If a person of parental authority who is the agent by law of his or her
child endangers by mismanagement the property of the child,
the court
may, upon the application of any of the child s relatives pursuant to
the provisions of Article 777, adjudge the loss
of the right of representation
on juristic acts of the child and the right of the management of the child.
CIVIL ACT
(Supp. 42) 168
Article 926 (Adjudication of Recovery of Lost Authority)
When the causes mentioned in Articles 924 and 925 have ceased to exist,
the court may upon the application of the party concerned or any of its
relatives pursuant to the provisions of Article 777, adjudge
the recovery
of the lost right.
Article 927 (Surrender and Recovery of Right of Representation and of
Property Management)
(1) The person of parental authority who is the agent by law of the child
may, if due reasons exist, surrender the right of representation
on the
juristic act of the child and the right of the management of property of
the child upon the approval of the court.
(2) If the circumstances mentioned in paragraph (1) cease to exist, the
person of parental authority may, upon the approval of the
court, recover
the right which he or she has surrendered.
CHAPTER GUARDIANSHIP
SECTION 1 Guardian
Article 928 (Commencement of Guardianship over Minor)
If there is no person of parental authority over a minor or if a person
of
parental authority is unable to exercise the right of representation
with respect to the juristic acts or the right of management
of property
of a minor, a guardian shall be appointed for said minor.
Article 929 (Commencement of Guardianship over Incompetent,
etc.)
If an adjudication of incompetency or quasi-competency has been made,
a guardian shall be appointed over such person who
has been adjudicated
as such.
Article 930 (Number of Guardian)
There shall be no more than one guardian.
Article 931 (Designation of Guardian by Will)
A parent who exercises parental authority over a minor may designate
by will a guardian over a minor: Provided, That a person of
parental
authority who has no right of representation on juristic acts or of man-
agement of property may not designate a guardian.
Article 932 (Order in Guardianship of Minor)
If no guardian is designated under Article 931, a guardian shall be appointed
CIVIL ACT
(Supp. 42) 170
in the order of the lineal blood relatives and collateral blood relatives
within the third degree of relationship of the minor.
[This Article Wholly Amended by Act No. 4199, Jan. 13, 1990]
Article 933 (Order in Guardianship of Incompetent Person, etc.)
If
incompetence or quasi-incompetence is adjudged, a guardian shall be
appointed in the order of the lineal blood relatives and collateral
blood
relatives within the third degree of relationship of the person who is
declared incompetent or quasi-incompetent.
[This Article Newly Inserted by Act No. 4199, Jan. 13, 1990]
Article 934 (Order in Guardianship of Married Person)
If a married
person is declared incompetent or quasi-incompetent, the
spouse shall be a guardian: Provided, That if the spouse is declared
incompetent
or quasi-incompetent as well, a guardian shall be appointed
in the order as provided in Article 933.
[This Article Wholly Amended by Act No. 4199, Jan. 13, 1990]
Article 935 (Order Whereby Guardian is to be Appointed)
(1) If there
are several lineal or collateral blood relatives as provided
in Articles 932 through 934, the precedence shall be given to the closest
relative, and if there are several persons in the same order, the precedence
shall be given to the oldest person.
(1) If there is no person to become guardian in accordance with provisions
of Articles 932 through 935, the court shall appoint
a guardian upon
the application of the ward s relatives pursuant to the provisions of Article
777 or of any other interested parties.
(2) The same shall apply as provided in the preceding paragraph in a
case where there is no person to become a guardian in accordance
with
the provisions of Articles 932 through 935, if any vacancy in the position
of guardian occurs due to the death, ineligibility
or any other reason of
the guardian.
10
171 (Supp. 42)
Article 937 (Ineligibility for Guardianship)
Any person who falls under any of the following subparagraphs shall not
become a guardian: 1. A minor;
2. A person adjudged as incompetent or quasi-incompetent;
3. A person declared bankrupt;
4. A person who has been sentenced to the punishment of not less than
suspension of qualification and is in serving the term of punishment;
5. An agent by law or a member of family council who has been removed
by the court;
6. A person whose whereabouts is unknown; and
7. A person who has brought or is bringing an action against the ward,
or his or her spouse or any of the lineal blood relatives
of such person.
Article 938 (Right of Representation of Guardian)
A guardian shall become the agent by law of the ward.
Article
939 (Surrender of Guardianship)
A guardian may, where any reasonable ground exists, surrender his au-
thority upon the approval of the court.
Article 940 (Replacement of Guardian)
(1) If it is deemed that there is a need to replace a guardian for the
welfare of the ward, the family court may replace the guardian
upon the
application of the ward s relative or a public prosecutor or ex officio.
(2) In the case of paragraph (1), the family
court may appoint a relative
within the fourth degree of relationship or any other competent person
as a guardian of the ward,
regardless of the order in guardianship referred
to in Articles 932 through 935.
[This Article Wholly Amended by Act No. 7427, Mar. 31, 2005]
SECTION 2 Duties of Guardian
Article 941 (Investigation of Property and Preparation of Inventory)
(1) A guardian shall, without delay, investigate the ward s
property,
and prepare an inventory of such property within two months: Provided,
That where reasonable grounds exist, this period
may be extended with
the permission of the court.
(2) The investigation of property and the preparation of the inventory
CIVIL ACT
(Supp. 42) 172
mentioned in paragraph (1) shall not be valid unless conducted with the
participation of a designated member of the family council.
Article 942 (Presentation of Claim and Obligation by Guardian)
(1) In a case where a guardian has a claim against, (or is under
an obligation
towards), the ward, he shall present the contents thereof to the family
council or a designated member of such council
before he completes the
preparation of the inventory.
(2) If a guardian, notwithstanding his awareness of his claim against
the ward, fails to present such claim as provided in paragraph
(1), he
shall be deemed to have waived the claim.
Article 943 (Authority of Guardian prior to Completion of Inventory)
Until a guardian has investigated the property and has completed
the
inventory, he shall not be entitled to exercise his authority with respect
to such property, except for urgent necessity: Provided,
That this may
not be set up against a third person acting in good faith.
Article 944 (Investigation of Property Acquired by Ward,
etc. under
Blanket Title)
The provisions of Articles 941 through 943 shall apply mutatis mutandis
to the case where the ward has acquired property under a
blanket title
after the guardian has assumed office.
Article 945 (Rights and Duties of Guardian on Status of Minor)
The guardian of a minor shall have, with respect to the matters as
provided
in Articles 913 to 915, the same rights and duties as a person of parental
authority: Provided, That in order to change
the mode of education, or
the place of residence as determined by the person of parental authority,
or to entrust the ward to a
reformatory or correctional institution, or
to revoke or restrict business permitted by the person of parental authority,
the guardian
shall obtain the consent of the family council.
Article 946 (Guardianship Limited to Management of Property)
When a person of parental
authority is only unable to exercise parental
power with respect to the right of representation on juristic acts and
the right
of management of property, the functions of a guardian shall
be limited to the acts concerning the property of a minor.
Article
947 (Medical Treatment and Care, and Custody for Incompetent)
(1) The guardian of an incompetent shall not neglect his duty of care
in the medical treatment, care and custody of his ward.
10
173 (Supp. 42)
(2) In order to place an incompetent under restraint in a private residence
or to confine such person in a mental institution or
any other place to
undergo medical treatment, a guardian shall obtain permission from the
court: Provided, That in an urgent situation,
he may apply to the court
for an ex post facto permission.
Article 948 (Exercise of Parental Authority of Minor)
(1) A guardian shall exercise parental authority in place of the ward
over
a child of the ward.
(2) With respect to the exercise of parental authority as mentioned in
paragraph (1), the provisions concerning the functions of
guardian shall
apply mutatis mutandis.
Article 949 (Right of Property Management and of Representation)
(1) A guardian shall manage the ward s property and represent the
ward in juristic acts concerning the latter s property.
(2) The provisions of the proviso of Article 920 shall apply mutatis
mutandis
to the juristic acts as mentioned in paragraph (1).
Article 950 (Restriction to Right of Legal Representation by Law and
Right
of Consent)
(1) A guardian shall obtain the consent of family council in order to do
one of the acts mentioned in the following subparagraphs
in place of the
ward, or to give consent to the performance of one of the acts mentioned
in the following subparagraphs by a minor
or a quasi-incompetent:
1. An act to conduct business;
2. An act to contract a debt or to stand surety;
3. An act which aims at acquisition, forfeit and alteration of right and
title on immovables or important property; and
4. An act to bring an action to the court.
(2) Any act done in violation of the provisions of paragraph (1) may be
revoked by the
ward or family council.
Article 951 (Acquisition of Right Against Ward by Assignment)
(1) When a guardian acquires by assignment a third person s right
against the ward, he shall obtain the consent of family council.
(2) An act done in violation of the provisions of paragraph (1)
may be
revoked by the ward or family council.
Article 952 (Peremptory Notice by Other Party on whether to Ratify)
The provisions of Article 15 shall apply mutatis mutandis to
the peremptory
notice of the other party to family council whether it ratifies or not in
10
173 (Supp. 42)
the cases of Articles 950 and 951.
Article 953 (Supervision over Guardianship Affairs by Family Council)
The family council may at any time demand a guardian to submit
a
report on the performance of its duties and to present an inventory of
property, and may investigate the status of the ward s
property.
Article 954 (Disposition concerning Guardianship Affairs by Court)
The court may, upon the application of the ward, of
any of the ward s
relatives pursuant to the provisions of Article 777 or of any other interested
persons, investigate the status
of the ward s property, and may order
such dispositions as may be necessary for the management of the ward s
property or any other
performance of guardian s duties.
Article 955 (Remuneration to Guardian)
The court may, upon the application of a guardian, allow to the guardian
a reasonable remuneration from the ward s property, taking
into account
the financial capacity of the ward and any other circumstances.
Article 956 (Mutatis Mutandis Application of Provisions
of Mandate and
Parental Authority)
The provisions of Articles 681 and 918 shall apply mutatis mutandis to
a guardian.
SECTION 3 Termination of Guardianship
Article 957 (Termination of Functions of Guardianship and Account of
Management)
(1) When the duties of a guardian have terminated, the guardian or
his successor shall render an account of his management within
one
month: Provided, That if there is any justifiable reason, such period
may be extended upon the approval of the court.
(2) The account as mentioned in paragraph (1) shall not be effective
unless conducted with the participation of a designated member
of family
council.
Article 958 (Addition of Interest and Liability for Pecuniary Expenditure)
(1) Money to be paid by a guardian to the ward or vice
versa shall bear
interest from the day when the account has been closed.
(2) If a guardian has expended the ward s money for its
own benefit,
such money shall bear interest from the day when the expenditure was
made, and if there are any damages incurred to
the ward, the guardian
shall be liable for such damages.
Article 959 (Mutatis Mutandis Application of Provisions concerning
CIVIL ACT
(Supp. 42) 174
Mandate)
The provisions of Articles 691 and 692 shall apply mutatis mutandis in
case of the termination of guardianship.
CHAPTER FAMILY COUNCIL
Article 960 (Organization of Family Council)
A family council shall be organized when any circumstances which require
a resolution of family council in accordance with the provisions
of this
Act and any other Acts exist.
Article 961 (Number of Family Council Members)
(1) Members of a family council shall be not less than three and not
more than ten in number.
(2) A family council shall have one representative, who is elected by
mutual votes among members of the family council.
(3) The
representative mentioned in paragraph (2) shall legally represent
the family council concerning activities in a litigation or other
acts directed
to outsiders.
Article 962 (Designation of Family Council Members by Person of Parental
Authority)
A person of parental authority who may designate a guardian, may
designate members of a family council for minor.
Article 963 (Election and Appointment of Family Council Member)
(1) Members of a family council shall be appointed by the court
from
among the relatives pursuant to the provisions of Article 777 or the persons
who are in any special relation to the person
concerned, upon the application
of the person concerned, his or her agent by law or any of the relatives
pursuant to the provisions
of Article 777 or the party interested: Provided,
That this shall not apply to the case where members of a family council
have
been designated in accordance with the provisions of Article 962.
(2) A person who is entitled to file an application to the court pursuant
to the provisions of paragraph (1), may submit a statement
of his opinion
concerning the number of members of the family council and their ap-
pointment.
Article 964 (Ineligibility for Membership of Family Council)
(1) A guardian may not become a member of family council for the ward
until the account of guardian s management has been completed.
(2) The provisions of Article 937 shall apply mutatis mutandis to
the
10
175 (Supp. 42)
members of family council.
Article 965 (Standing Family Council for Person Lacking Legal Capacity)
(1) A family council for a minor, an incompetent or a quasi-incompetent
shall continue to exist until the time when the cause of incapacity has ceased.
(2) When a vacancy in the position of family council
member as referred
to in the preceding paragraph has occurred, the court shall fill up such
vacancy ex officio or upon the application.
Article 966 (Convocation of Family Council)
Family council shall be convoked by the Family Court upon the application
of the person concerned, his or her agent by law, spouse,
any lineal blood
relatives, member of family council, the party interested or prosecutor.
(3) In cases where a decision has been made in writing by an affirmative
vote of the majority of family council in place of a decision
of family
council, the person who is entitled to demand the convocation of family
council in accordance with the provisions of
Article 966 may apply to the
court for its revocation within two months.
Article 968 (Expression of Opinion at Family Council)
The person concerned, his or her agent by law, spouse, lineal blood relative,
or collateral blood relative within the fourth degree of relationship may
present and express his or her opinion at a family council.
Article 969 (Court Decision to be Substituted for Decision of Family
Council)
If it is impossible for family council to make a decision or family council
fails to make a decision, the person who is entitled
to demand the con-
vocation of family council may apply to the court for a decision which
will substitute for a decision of family
council.
Article 970 (Surrender of Membership from Family Council)
A member of family council may, if valid reasons exist, surrender
the
membership of family council upon permission of the court.
Article 971 (Dismissal of Family Council Member)
(1) If any unjustifiable act has been committed against the duty of the
CIVIL ACT
(Supp. 42) 176
member of family council and there is any other improper reason, the
court may, ex officio or upon the application of the person
concerned,
his or her agent by law, or any of the relatives of the person concerned
pursuant to the provisions of Article 777,
or the person interested, replace
or dismiss the responsible member of family council.
(2) In cases where the count deems it appropriate,
the court may ex
officio or upon the application of the person concerned, his or her agent
by law, or any of the relatives of the
person concerned pursuant to the
provisions of Article 777 or the party interested, increase the number
of the members of family
council and appoint them.
Article 972 (Decision of Family Council and Actions of Demurrer thereto)
A person who is entitled to
demand the convocation of a family council,
may within two months after a decision of family council file an action
in the court,
to contest such decision.
Article 973 (Duties of Members of Family Council to Manage with Care
of Good Manager)
The provisions of Article 681 shall apply mutatis mutandis to a member
of family council.
CHAPTER SUPPORT
Article 974 (Duty to Furnish Support)
Relatives falling under each of the following subparagraphs shall be
under a duty to furnish support to each other:
1. Among lineal blood relatives and their spouses;
2. Deleted; 3. Among any other relatives (limited to cases where they share living
accommodations).
Article 975 (Duty to Furnish Support and Ability of Living)
A person under duty to furnish support shall perform his or her duty
only in cases where the person entitled to receive support is unable to
support himself or herself by his or her own financial
resources or labor.
Article 976 (Order to Furnish Support)
(1) In cases where there exist several persons under duty to support,
and no agreement has been reached between the parties concerned
with
respect to the order in which they are to furnish support, such order
shall be determined by the court upon the application
of the parties
CIVIL ACT
(Supp. 42) 182
concerned. In cases where there exist several persons entitled to get support,
and the financial capacity of the person under duty
to furnish support
is insufficient to support all of them, the same shall apply.
(2) In cases of paragraph (1), the court may select
and designate several
persons under duty to furnish support, or entitled to get support.
Article 977 (Extent and Method of Support)
If no agreement has been reached between the parties concerned with
respect to the extent and method of support, the court may,
upon the
application of the parties concerned, determine such matters, taking
into account the living standard of the person entitled
to get support,
the financial capacity of the person under duty to furnish support and
any other related circumstances.
Article 978 (Alteration or Revocation of Support Relation)
If, after an agreement has been reached between the parties concerned,
or a court decision has been rendered with respect to the order of persons
under obligation to support or persons entitled to get
support, or to the
extent and method of support, any change has taken place in the cir-
cumstances, the court may revoke or alter
the agreement or the decision
upon the application of the parties concerned.
Article 979 (Prohibition of Disposition of Claim for Support)
The right to be supported may not be the subject of disposition.
CHAPTER Deleted.
Articles 980 through 996 Deleted.
CHAPTER INHERITANCE
SECTION 1 General Provisions
Article 997 (Causes for Commencement of Inheritance)
An inheritance shall be commenced by death.
Article 998 (Place of Commencement of Inheritance)
An inheritance shall be commenced at the place of domicile of the inheritee.
[This Article Wholly Amended by Act No. 4199, Jan. 13, 1990]
10
183 (Supp. 42)
Article 998-2 (Expenses for Inheritance)
Expenses for inheritance shall be paid out of the inherited property.
[This Article Newly Inserted by Act No. 4199, Jan. 13, 1990]
Article 999 (Claim for Recovery of Inheritance)
(1) If the right of inheritance is infringed by a person who pretends to
have the right of inheritance, the person who has the right
of inheritance
or his agent by law may bring an action for recovery of inheritance.
(2) The claim for recovery of inheritance under
paragraph (1) shall lapse
at the expiration of three years from the date he comes to know the
infringement, or ten years from the
date the right of inheritance is infringed.
[This Article Wholly Amended by Act No. 4199, Jan. 13, 1990]
SECTION 2 Inheritor
Article 1000 (Priority of Inheritance)
(1) In inheritance, persons become inheritors in the following order:
1. Lineal descendants of the inheritee;
2. Lineal ascendants of the inheritee;
3. Brothers and sisters of the inheritee; and
4. Collateral blood relatives within the fourth degree of the inheritee.
(2) In the case mentioned in paragraph (1), if there are
two or more
inheritors standing in the same order, the closest in degree of relationship
shall have the priority of inheritance.
If there are two or more inheritors
standing in the same degree of relationship, they become coinheritors.
(3) With respect to
the order of inheritance, an unborn child shall be
considered as born.
Where a lineal descendant or a brother or sister who would become an
inheritor in accordance with the provisions of Article 1000
(1) 1 and 3,
has died, or has become disqualified before the commencement of suc-
cession, his or her lineal descendants, if any
exist, shall become inheritors
in the order in which the deceased or disqualified person would have
become the inheritor.
Article 1002 Deleted.
(1) If there exist such inheritors as provided in Article 1000 (1) 1 and
CIVIL ACT
(Supp. 42) 184
2, the spouse of the inheritee becomes a co-inheritor, in the same order
as the said inheritor. If there exists no inheritor, the
spouse becomes
the sole inheritor.
1. A person who has intentionally killed or attempted to kill a lineal
ascendant, the inheritee, his or her spouse, or any person
who has
priority or is in the same order of inheritance;
2. A person who has intentionally assaulted a lineal ascendant, the
inheritee or his or her spouse, and caused their death;
3. A person who interferes by fraud or duress with a will or withdrawal
of a will on inheritance of the inheritee;
4. A person who, by fraud or duress, has the inheritee make a will on
his or her inheritance; and
5. A person who forges, alters, destroys or conceals a will on inheritance
of the inheritee.
SECTION 3 Effects of Inheritance
Sub-Section 1 General Effect
Article 1005 (Inheritance and Succession of Blanket Rights and Duties)
An inheritor succeeds, from the time of the commencement
of the
inheritance, to the blanket rights and duties pertaining to the property
of the inheritee: Provided, That this shall not
apply to the property
which is entirely personal to the inheritee.
Article 1006 (Joint Inheritance and Co-ownership of Inherited Property)
If there exist two or more inheritors, they become co-owners
of the inherited
property.
185 (Supp. 42)
Article 1007 (Co-Inheritor s Succession to Rights and Duties of Inheritee)
Each of the co-inheritors succeeds to the rights and
duties of the inheritee
in proportion to his share of the inheritance.
Article 1008 (Shares of Inheritance for Special Beneficiary)
If any one of the co-inheritors has previously received a gift or testa
mentary gift of property from the inheritee, and such property received
is of less value than his share of the inheritance, he
shall be entitled
to a share of the inheritance within the limit of the difference between
the said gifts and his legal share of
the inheritance.
Article 1008-2 (Contributory Portion)
(1) If there is a person among co-inheritors who has specially supported
the inheritee through sharing living accommodations or
providing
nursing, etc. for a considerable period or has specially contributed to the
maintenance or increase of the property of
the inheritee, the value,
calculated by deducting his contributory portion as determined by an
agreement of co-inheritors from
the value of property of the inheritee at
the time the inheritance is commenced, shall be considered as an inherited
property.
The amount calculated by adding such contributory portion to
the inherited portion calculated under Articles 1009 and 1010 shall
be
the inherited portion of that person.
(3) The contributory portion shall not exceed the amount calculated by
deducting the value of testamentary gifts from that of property
of the
inheritee when the inheritance is commenced.
(4) The request under paragraph (2) may be made when a request is
made under Article 1013 (2), or as provided in Article 1014.
[This Article Newly Inserted by Act No. 4199, Jan. 13, 1990]
Article 1008-3 (Inheritance of Graveyards, etc.)
The right of ownership in forest land not more than 2.451 acres for
graves and farmland for management of graves less than 1983.48
square
meters, a genealogy, and ritual implements shall be succeeded to by the
CIVIL ACT
(Supp. 42) 186
person who superintends the ancestral rites.
[This Article Newly Inserted by Act No. 4199, Jan. 13, 1990]
Sub-Section 2 Shares of Inheritance
Article 1009 (Legal Portions in Inheritance)
(1) If there exist two or more inheritors in the same rank, their shares
of the inheritance shall be equally divided.
(2) The portions inherited to an inheritee s spouse shall be increased
by fifty percent over the inherited portion of his or her
lineal descendant
where he or she inherits jointly with his or her descendants, or fifty percent
over the inherited portion of
his or her lineal ascendant where he or she
inherits jointly with his or her lineal ascendants.
(3) Deleted.
Article 1010 (Shares of Inheritance by Representation)
(1) The portion inherited by the person who becomes an inheritor in
place
of the deceased or disqualified person in accordance with the provisions
of Article 1001 shall be that of the deceased or the disqualified
person.
(2) In the case mentioned in paragraph (1), if there exist two or more
lineal descendants of the deceased or disqualified
person, their shares
of the inheritance shall be determined in accordance with the provisions
of Article 1009, within the limit
of the share of the inheritance of the
deceased or disqualified person. The same shall also apply to the cases
mentioned in Article
1003 (2).
Article 1011 (Assignment of Common Shares in Joint Inheritance)
(1) If one of the co-inheritors assigns his or her share of the
inheritance
to a third person, any other co-inheritor may obtain such share by transfer
upon effecting a reimbursement of its value
and expenses relating to the
transfer.
(2) The right mentioned in paragraph (1) shall be exercised within three
months from the day on which such cause has been known
or within one
year from the day on which such cause has occurred.
Sub-Section 3 Division of Inherited Property
Article 1012 (Determination of Method Division or Forbidding Division
10
187 (Supp. 42)
by Will)
An inheritee may by will determine the method of division of the inherited
property, entrust a third person with such determination,
or forbid division
for a period not exceeding five years from the time of the commencement
of the inheritance.
Article 1013 (Division by Agreement)
(1) Except as mentioned in Article 1012, co-inheritors may, at any time,
effect the division of the inherited property by their
agreement.
(2) The provisions of Article 269 shall apply mutatis mutandis to the
division of the inherited property mentioned in
paragraph (1).
Article 1014 (Right to Apply for Division by Person, etc. Affiliated after
Division of Inherited Property)
Where a person who has become a co-inheritor by affiliation or by a final
judgement after the commencement of the inheritance applies
for the
division of inherited property, he or she may, if other co-inheritors have
already effected the partition or other disposition,
claim payment of the
amount equivalent to his or her portion.
Article 1015 (Retroactive Effect of Division)
Division of an inherited property shall be effective retroactively from
the time of the commencement of the inheritance: Provided,
That the
rights of third persons shall not be prejudiced thereby.
Article 1016 (Liability for Warranty to be Borne by Co-Inheritor)
Each co-inheritor shall, in proportion to his or her share of the inheritance,
bear the same liability for warranty as that of
a seller towards other
co-inheritors with regard to the property acquired by them through division.
Article 1017 (Liability for
Warranty for Solvency of Obligor to
Inheritance)
(1) Each co-inheritor shall, in proportion to his or her share of the
inheritance, warrant the solvency of the obligor as of the
time of division
with regard to claims acquired by other co-inheritors through division.
(2) With regard to an obligation which
is not yet due or an obligation
subject to a condition precedent, each co-inheritor warrants the solvency
of the obligor at the
time of performance.
Article 1018 (Apportionment of Warranty Liability of Insolvent
CoInheritor)
If there is an insolvent person among co-inheritors liable for warranty,
the portion of liability which such person is to bear is
apportioned to
CIVIL ACT
(Supp. 42) 188
those having the right to claim for reimbursement and other solvent
co-inheritors in proportion to their inherited portions: Provided,
That
if the person who has the right to claim reimbursement fails to receive
any reimbursement due to his own negligence, he may
not make a demand
upon the other co-inheritors to bear their portions.
SECTION 4 Acceptance and Renunciation of
Inheritance
Sub-Section 1 General Provisions
Article 1019 (Period for Acceptance and Renunciation)
(1) An inheritor to property may, within three months after he is informed
of the commencement of an inheritance, effect an acceptance, absolute
or qualified, or a renunciation: Provided, That such period
may be extended
by the Family Court upon the application of any party interested or of
a public prosecutor.
(3) Notwithstanding the provisions of paragraph (1), where an inheritor
has made an absolute acceptance (including the case deemed
to have
made an absolute acceptance under subparagraphs 1 and 2 of Article 1026)
without knowing the fact that his inherited liability
exceeds his inherited
property within the period under paragraph (1) without any gross
negligence, a qualified acceptance may be
made within 3 months from the
date on which he knew such fact.
If an inheritor is a person without legal capacity, the period mentioned
in Article 1019 (1) shall be calculated from the time when
his agent by
law becomes aware that the inheritance has been commenced.
Article 1021 (Special Rule Governing Calculation of Period
for Acceptance
or Renunciation)
Where an inheritor dies without effecting either acceptance or renunciation
within the period mentioned in Article 1019 (1), the
period mentioned
in Article 1019 (1) shall be calculated from the time when his inheritor
10
189 (Supp. 42)
becomes aware that the inheritance has been commenced in his favor.
Article 1022 (Management of Inherited Property)
An inheritor shall manage the inherited property with the same care as
he uses with respect to his own property: Provided, That
this shall not
apply when the inheritor has effected either absolute acceptance or re-
nunciation.
Article 1023 (Disposition Necessary for Preservation of Inherited
Property)
(1) The court may, upon the application of any party interested or of
a public prosecutor, at any time, order a disposition as may
be necessary
for the preservation of the inherited property.
(2) Where the court appoints an administrator for property, the provisions
of Articles 24 through 26 shall apply mutatis mutandis.
Article 1024 (Prohibition of Revocation of Acceptance or Renunciation)
(1) Acceptance or renunciation of inheritance may not be
revoked even
within the period mentioned in Article 1019 (1).
(2) The provisions of paragraph (1) shall not affect the voidance in ac-
cordance with the provisions of Part I, General Provisions:
Provided, That
such right of voidance shall be extinguished by prescription, if it is not
exercised within three months from the
day on which it became possible
to effect ratification, or within one year from the day on which acceptance
or renunciation was
effected.
Sub-Section 2 Absolute Acceptance
Article 1025 (Effect of Absolute Acceptance)
If an inheritor effects an absolute acceptance, he shall succeed without
limitation to the rights and duties of the inheritee.
Article 1026 (Absolute Acceptance by Law)
Where the cause mentioned in any of the following subparagraphs exists,
an inheritor shall be deemed to have effected an absolute
acceptance:
1. If an inheritor has taken an act of disposition with regard to the inherited
property;
2. If an inheritor has failed to effect either a qualified acceptance or a
CIVIL ACT
(Supp. 42) 190
renunciation within the period mentioned in Article 1019 (1); and
This subparagraph was amended by Act No. 6591, Jan. 4, 2002 according
to the decision of the Constitutional Court as unconstitutional on August
27, 1998
3. If an inheritor, after having effected a qualified acceptance or a
renunciation, has concealed or fraudulently consumed, or failed
intentionally to enter in the inventory, the inherited property.
Article 1027 (Exception to Absolute Acceptance by Law)
If an
inheritor of second priority has accepted an inheritance owing to
renunciation of inheritance effected by the inheritor, the cause
mentioned
in subparagraph 3 of Article 1026 shall not be deemed as an acceptance
of inheritance.
Sub-Section 3 Qualified Acceptance
Article 1028 (Effect of Qualified Acceptance)
An inheritor may effect an acceptance of inheritance on the condition
that he shall perform the obligations and testamentary gift
of the inheritee
only to the extent of the property to be acquired through the inheritance.
Article 1029 (Qualified Acceptance by Co-Inheritors)
If there exist two or more inheritors, each inheritor may effect an acceptance
of inheritance on the condition that he shall perform in proportion to his
share of the obligations and testamentary gift of the
inheritee only to
the extent of the property to be acquired in proportion to his share of
the inheritance.
Article 1030 (Method of Qualified Acceptance)
(1) If an inheritor desires to effect a qualified acceptance, he shall file
a report of qualified acceptance, attaching an inventory
of the inherited
property, with the court within the period mentioned in Article 1019 (1)
or (3).
(2) In effecting a qualified acceptance pursuant to Article 1019 (3), if
there is any property, among the inherited properties,
which is already
disposed of, its inventory and value shall be submitted together.
Article 1031 (Qualified Acceptance and Non-extinction of Rights and Du
ties over Property)
CIVIL ACT
189-1(Supp. 29)
Where an inheritor effects a qualified acceptance, any rights and duties
over property which he had towards the inheritee shall
be deemed not
to have been extinguished.
Article 1032 (Public Notice and Peremptory Notice towards Obligees)
(1) A qualified acceptor shall, within five days after he has
effected the
qualified acceptance, notify the general obligees in succession and the
testamentary donees by public notice that
he has effected a qualified
acceptance and that they are called upon to notify him of their claims
or testamentary gifts within
a specified period of not less than two months.
(2) The provisions of Articles 88 (2) and (3), and 89 shall apply mutatis
mutandis
to the cases mentioned in paragraph (1).
Article 1033 (Refusal of Performance within Period of Peremptory
Notice)
A qualified acceptor may refuse performance of obligations relating to
inheritance, until the expiration of the period mentioned
in Article 1032
(1).
Article 1034 (Performance by Distribution)
(1) A qualified acceptor shall, upon the expiration of the period mentioned
in Article 1032 (1), effect performance to obligees
who have notified him
of their claims within such period, and to all other obligees known to him,
in proportion to the amounts
of their respective claims of the inherited
property: Provided, That the rights of the obligees who have priority may
not be prejudiced
thereby.
(2) Where a qualified acceptance is made pursuant to Article 1019 (3),
the inheritor shall effect the performance of paragraph (1)
by adding up
the amounts of the remaining inherited property and the inherited property
already disposed of: Provided, That the
amount of performance which
is already effected to obligees in inheritance or testamentary donees
before such a qualified acceptance
is made shall be excluded from the amount
of the property which is already disposed of.
Article 1035 (Performance of Obligations, etc., which are not yet Due)
(1) A qualified acceptor shall perform in accordance with
the provisions
of Article 1034 even those obligations which are not yet due.
(2) Conditional obligations or obligations with uncertain
duration shall
be performed according to the valuation of an expert appointed by the
court.
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Article 1036 (Performance to Testamentary Donees)
A qualified acceptor may not effect performance to testamentary donees
until
he has completed performance to all obligees inherited in accor dance
with the provisions of Articles 1034 and 1035.
Article 1037 (Sale of Inherited Property by Auction)
When it is necessary to sell out some or all of the inherited properties
in
order to perform the obligations in accordance with the provisions of
Articles 1034 through 1036, an auction shall be held pursuant
to the
Civil Execution Act.
Article 1038 (Liability Arising from Unfair Performance. etc.)
(1) If a qualified acceptor has neglected to give a public or peremptory
notice pursuant to the provisions of Article 1032, or has effected performance
to some obligees in inheritance or testamentary
donees in violation of the
provisions of Articles 1033 through 1036, and in consequence has become
unable to effect performance
to the other obligees in inheritance or
testamentary donees, he shall redress any damages arising therefrom. This
shall also apply
to the cases where the inheritor who has neglected to
know the fact that his inherited liability exceeds his inherited property
but has made a qualified acceptance pursuant to Article 1019 (3) had
effected performance to some obligees in inheritance or testamentary
donees
before such a qualified acceptance.
Article 1039 (Obligees, etc. who Fail to Give Notice of Their Claims)
Obligees in inheritance and testamentary donees who have failed
to
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give notice of their claims within the period mentioned in Article 1032
(1), and who were unknown to the qualified acceptor, may
receive
performance only where there is any surplus of the inherited property:
Provided, That this shall not apply where obligees
to the inherited property
and testamentary donees have special security interest with respect to
the inherited property.
Article 1040 (Property Jointly Inherited and Appointment of
Administrator Thereof)
(1) Where there exist two or more inheritors, the court shall, upon the
request of each inheritor or interested person, appoint
an administrator
of the inherited property among the co-inheritors.
(2) The administrator appointed by the court shall have the
right and
duty to perform all acts relating to management of the inherited property
and perform obligations on behalf of the co-inheritors.
(3) The provisions of Articles 1022 and 1032 through 1039 shall apply
mutatis mutandis to the administrator mentioned in paragraph
(2):
Provided, That the period of five days of public notice to be given in accordance
with the provisions of Article 1032 shall
be calculated from the day on
which an administrator became aware of his appointment.
Sub-Section 4 Renunciation
Article 1041 (Method of Renunciation)
If an inheritor to property effects a renunciation of an inheritance, he
shall make a declaration of renunciation to the Family
Court within
the period mentioned in Article 1019 (1).
Article 1042 (Retroactive Effect of Renunciation)
A renunciation of inheritance shall be effective retroactively from the
time
of the commencement of the inheritance.
Article 1043 (Reversion of Renounced Inherited Property)
Where there exist two or more inheritors, and one of them has effected
a renunciation of inheritance, his share of the inheritance shall revert
to the other inheritors in proportion to their respective
shares thereof.
Article 1044 (Duty to Continue Management of Renounced Inherited
Property)
(1) A person who has effected a renunciation of inheritance shall continue
to manage the inherited property until the person who
becomes inheritor
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by reason of renunciation is able to undertake the management of the
property.
(2) The provisions of Articles 1022 and 1023 shall apply mutatis mutandis
to the management of the property mentioned in paragraph
(1).
SECTION 5 Separation of Property
Article 1045 (Right to Apply to Court for Separation of Inherited Property)
(1) An obligee in inheritance, or a testamentary donee,
or an obligee of
an inheritor, may, within three months from the time of the commencement
of the inheritance, apply to the court
for the separation of the inherited
property from the inherent property of the inheritor.
(2) An application may be filed with
the court for the separation of
property even after the period mentioned in paragraph (1) elapses, until
such time as an inheritor
has not accepted or renounced the pertinent
inheritance.
(1) If the court has ordered a separation of property on an application
as mentioned in Article 1045, the applicant shall, within
five days, give
public notice to the general obligees in inheritance and to testamentary
donees, that an order for a separation
of property has been issued and
that they are called upon to give a notice of their claims or testamentary
gifts within a specified
period of not less than two months.
(2) The provisions of Articles 88 (2) and (3), and 89 shall apply mutatis
mutandis to the cases
mentioned in paragraph (1).
Article 1047 (Management of Inherited Property after Separation of
Property)
(1) Where the court has ordered a separation of property, it may order
the adoption of such measures as may be necessary for the
management
of the inherited property.
(2) Where the court has appointed an administrator of property, the
provisions of Articles 24 through 26 shall apply mutatis mutandis.
Article 1048 (Inheritor s Duty to Manage Property Inherited after Sep-
aration of Property)
(1) Even after an inheritor has effected an absolute acceptance, and if
a separation of property has been ordered, the inheritor
shall henceforth
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manage the inherited property with the same care as he uses with respect
to his own property.
(2) The provisions of Articles 683 through 685, and 688 (1) and (2)
shall apply mutatis mutandis to the management of property mentioned
in paragraph (1).
Article 1049 (Condition to Set up against Third Person in case of
Separation of Property)
As to immovable inherited property, a separation of property cannot be
set up against a third person, unless it has been registered.
Article 1050 (Separation of Property and Non-extinguishment of Right
and Duty)
Where a separation of property has been ordered, the rights and duties
of the inheritor to the inheritee with respect to the property
shall not
become extinguished.
Article 1051 (Refusal of Performance and Performance by Distribution)
(1) An inheritor may refuse performance to obligees in inheritance,
and
to testamentary donees, until the expiration of the periods mentioned
in Articles 1045 and 1046.
(2) The inheritor shall, upon the expiration of the period mentioned
in paragraph (1), effect performance, out of the inherited
property, to
obligees in inheritance and testamentary donees who applied for the
separation of property or who have notified within
such period, and to
obligees in inheritance and testamentary donees known to the inheritor,
in proportion to their amount of obligations
or testamentary gifts: Provided,
That the rights of obligees who have priority may not be prejudiced thereby.
(3) The provisions
of Articles 1035 through 1038 shall apply mutatis
mutandis to the cases mentioned in paragraph (2).
Article 1052 (Performance of
Obligation out of Inherent Property)
(1) The obligees in inheritance and testamentary donees pursuant to
the provisions of Article
1051 may be entitled to receive performance
out of the inherent property of the inheritor only where they are unable
to receive
full performance from the inherited property.
(2) In the case mentioned in paragraph (1), the obligees of the inheritor
shall have
the right to receive performance in preference to other persons
out of the inherent property of the inheritor.
SECTION 6 Absence of Inheritor
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Article 1053 (Administrator of Property of which Inheritor does not
Exist)
(1) If it is unknown whether an inheritor exists, the court shall, upon
the application of any relative of the inheritee pursuant
to the provisions
of Article 777 or any other interested person or the public prosecutor,
appoint an administrator of the inherited
property, and shall publicly
announce the matter without delay.
If a demand is made by any of the obligees in inheritance or testamentary
donees, the administrator shall at any time present the
inventory of the
inherited property and report the status thereof.
Article 1055 (Cases in which Existence of Inheritor Becomes
Clear)
(1) The duty of an administrator shall be terminated at the time when
an inheritor effects an acceptance of inheritance.
(2) In the case mentioned in paragraph (1), the administrator shall
render an account of the management of the inherited property
without
delay.
Article 1056 (Liquidation of Property of which Inheritor does not Exist)
(1) If it is unknown within three months after the public
notice mentioned
in Article 1053(1) has been given whether an inheritor exists, the
administrator shall, without delay, give public
notice to the general
obligees in inheritance and testamentary donees, calling upon them to
give him notice of their claims or
testamentary gifts within a specified
period of not less than two months.
(2) The provisions of Articles 88 (2) and (3), 89, and 1033 through 1039
shall apply mutatis mutandis to the cases mentioned in
paragraph (1).
Article 1057 (Public Notice in Order to Search Inheritor)
If, after the expiration of the period mentioned in Article
1056 (1), it
is still unknown whether an inheritor exists, the court shall, upon the
application of the administrator, give public
notice calling upon the
inheritors, if any, to assert their rights within a specified period of not
less than one year.
(Supp. 29) 190
prescribed in Article 1057, the Family Court may apportion all or part
of the inherited property upon the request of those who have
lived together
with the inheritee, have provided the inheritee with medical and nursing
care, or have had a special relationship
with him.
(2) The request as referred to in paragraph (1) shall be made within
two months after the period prescribed in Article 1057 expires.
[This Article Newly Inserted by Act No. 4199, Jan. 13, 1990]
Article 1058 (Escheatment of Inherited Property)
(1) If there is any inherited property which is not apportioned pursuant
to Article 1057-2, the inherited property shall be escheated
to the State.
(2) The provisions of Article 1055 (2) shall apply mutatis mutandis to
the cases of paragraph (1).
In the case mentioned in Article 1058 (1), even if there exist any obligees
in inheritance or testamentary donees who have not received
any
performance out of the inherited property, no demand of such performance
may be filed against the State.
CHAPTER WILLS
SECTION 1 General Provisions
Article 1060 (Formality of Wills)
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191 (Supp. 29)
No will shall take effect unless he is in conformity with the formality
stipulated by this Act.
Article 1061 (Eligible Age to Make Will)
Any person who has not attained full seventeen years of age may not make
a will.
Article 1062 (Persons without Legal Capacity and Wills)
The provisions of Articles 5, 10 and 13 shall not apply to wills.
Article
1063 (Incompetent s Capacity to Make Will)
(1) An incompetent may make a will only when he has sufficiently
recovered to the point
of understanding his intentions.
(2) In case of paragraph (1), a medical practitioner shall add in writing
the status of recovery
of mental soundness on the testament, and shall
affix his signature and seal thereto.
Article 1064 (Will and Unborn Child and Ineligible Person for Succession)
The provisions of Articles 1000 (3) and 1004 shall apply
mutatis mutandis
to a testamentary donee.
Article 1065 (Ordinary Form of Wills)
There shall be five forms of wills as follows: holograph document, sound
recording, notarial and secret documents and instrument
of dictation.
Article 1066 (Will by Holograph Document)
(1) In order to make a will by holograph document, the testator must
write with his own handwriting the whole text, the date, the
domicile
and his full name, and must affix his seal thereto.
(2) In order to make any insertion, deletion or other alteration of
letters
in a holograph mentioned in paragraph (1), such correction must be made
in the testator s own handwriting and affix his
seal thereto.
Article 1067 (Will by Sound Recording)
In order to make a will by a sound recording, the testator must orally
state the tenor of his will, his full name and the date,
and the witness
must orally state that the will made by the testator is due and correct
and also state his full name.
Article 1068 (Will by Notarial Document)
In order to make a will by a notarial document, the testator must orally
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state the tenor of his will before a notary, in the presence of two witnesses
and the notary must write down and read it, and then
the testator and
each of the witness must affix their signature or names, and seals to the
writing after acknowledging it to be
due and correct.
Article 1069 (Will by Secret Document)
(1) In order to make a will by a secret document, the testator must close
up the document on which the writer s full name was written
and affix
his seal thereto, and after the testator has produced the sealed document
before at least two witnesses and declares
that it is his testamentary
document, the date of the production of the document must be written
on the sealed cover, and then
the testator and the witnesses must affix
their signatures or names and seals thereto.
(2) A closed document of a will prepared in compliance with the forms
mentioned in paragraph (1) must be submitted to a notary or
the court
clerk within five days from the day on which the date of production of
the document has been written down on the cover
of the document, and
the date of confirmation thereof must be affixed on the part sealed.
Article 1070 (Will by Instrument of Dictation)
(1) In order to make a will by an instrument of dictation in a case where
a will is not able to be made in compliance with the forms
mentioned
in the preceding four Articles due to disease or any other cause imminent,
the testator must orally declare the tenor
of his will to one of the witnesses
in the presence of at least two witnesses, and the person to whom the oral
declaration is made
must write it down and read it, and the testator and
each witness, after their having acknowledged the writing to be due and
correct,
must affix their signature and seal thereto.
(2) A will made in compliance with the form mentioned in paragraph (1)
must be submitted
to the court for its inspection and approval thereof
by the witness or the persons interested within seven days from the day
on
which such imminent cause terminates.
(3) The provisions of Article 1063 (2) shall not apply to a will to be made
by an instrument of dictation.
Article 1071 (Conversion of Will made by Secret Document)
If a will which has been made by a secret document is defective as to
formalities, he shall be deemed as a holograph will if he fulfills the
formalities of a holograph document.
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Article 1072 (Ineligibility for Witness)
(1) Any person falling under one of the following subparagraphs may not
become a witness to the preparation of a will:
1. A minor;
2. An incompetent and quasi-incompetent person; and
3. A person to be benefited by a will, his spouse, or lineal blood relatives.
(2) A person who is ineligible pursuant to the provisions
of the Notary
Public Act may not become a witness to the preparation of a notarial will.
SECTION 3 Effect of Wills
Article 1073 (Time for Effectiveness of Wills)
(1) A will becomes effective upon the death of the testator.
(2) Where a will is subject to a precedent condition, and the condition
is fulfilled after the death of the testator, the will becomes effective
upon the fulfillment of the condition.
Article 1074 (Acceptance or Renunciation of Testamentary Gift)
(1) A testamentary donee may effect an acceptance or a renunciation
of
the testamentary gift at any time subsequent to the death of the testator.
(2) The acceptance or renunciation mentioned in paragraph
(1) shall be
effective retroactively from the time of the death of the testator.
Article 1075 (Prohibition of Revocation of Acceptance
or Renunciation
of Testamentary Gift)
(1) An acceptance or a renunciation of a testamentary gift cannot be revoked.
(2) The provisions of Article 1024 (2) shall apply
mutatis mutandis to
the acceptance and renunciation of testamentary gifts.
Article 1076 (Acceptance or Renunciation of Inheritor
to Testamentary
Donee)
Where a testamentary donee dies without effecting either an acceptance
or a renunciation of the testamentary gift, his inheritor
can effect an
acceptance or a renunciation within the limits of his share of the inher-
itance: Provided, That if the testator
has declared a different intention in
his will, such intention shall prevail.
Article 1077 (Right to Give Peremptory Notice by Person Charged with
Testamentary Gift)
(1) A person charged with a testamentary gift or any interested person
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(Supp. 3) 194
may, by fixing a reasonable period, give a peremptory notice to the tes-
tamentary donee or his inheritor to furnish within such
period a definite
answer as to whether he would effect an acceptance or a renunciation
of the testamentary gift.
(2) If the testamentary donee or his inheritor fails to furnish a definite
answer to the person charged with the testamentary gift
within the period
mentioned in paragraph (1), he shall be deemed to have accepted the
testamentary gift.
Article 1078 (Rights and Duties of Testamentary Donee by Universal Title)
A testamentary donee by a universal title has the same
rights and duties
as an inheritor.
If the person charged with a testamentary gift defrays necessary expenses
for the purpose of collecting the fruits of the subject
of the testamentary
gift after the death of the testator, he may make a demand upon the
testamentary donee who has acquired the
fruits for reimbursement
thereof to the extent of the value of the fruits derived therefrom.
Article 1081 (Right to Demand Reimbursement
of Expenses by Person
Charged with Testamentary Gift)
If the person charged with a testamentary gift defrays any expenses with
respect to the subject of the testamentary gift after the
death of the testator,
the provisions of Article 325 shall apply mutatis mutandis.
Article 1082 (Liability for Warranty to be Assumed
by Person Charged
with Unspecified Testamentary Gift)
(1) Where an unspecified item has become the subject of a testamentary gift,
the person charged with the testamentary gift shall
assume the same
liability with respect to the warranty as that of a seller.
(2) In the case mentioned in paragraph (1), if any
defect exists in the
object, the person charged with the testamentary gift shall substitute an
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item free from any defect for the object.
Article 1083 (Subrogation for Testamentary Gift)
Where a testator has a right to demand compensation from a third person
by reason of the loss, or damage of the subject of a testamentary
gift or
infringement upon the possession thereof, such right shall be deemed
to have become the subject of the testamentary gift.
Article 1084 (Subrogation for Testamentary Gift of which Subject is Claim)
(1) Where a claim has become the subject of a testamentary
gift, and
the things which the testator has received by obtaining performance still
remain among the inherited property, such things
shall be deemed to have
become the subject of the testamentary gift.
(2) As to a claim mentioned in paragraph (1) for which money is the subject,
the amount of such money shall be deemed to have become
the subject
of the testamentary gift even though there is no sum of money corresponding
to the amount of the claim included in
the inherited property.
Article 1085 (Item or Right Which Constitutes Subject of Testamentary
Gift)
If the item or right which constitutes the subject of a testamentary gift at
the time of the death of the testator is the subject
of a right belonging
to a third person, the testamentary donee may not demand from the person
charged with the testamentary gift
that such right be extinguished.
Article 1086 (Cases in which Testator has Declared Different Intention
in His Will)
In the cases mentioned in Articles 1083 through 1085, if the testator has
declared a different intention in his will, such intention
shall prevail.
Article 1087 (Testamentary Gift of Right Which does not Comprise Inherited
Property)
(1) A will shall not take effect if the right which forms the subject thereof
does not comprise the inherited property at the time
of the death of the
testator: Provided, That if the testator had intended that his will should
take effect even if the subject
of his will does not comprise the inherited
property at the time of his death, the person charged with the testa-
mentary gift
is under a duty to acquire that right and transfer it to
the testamentary donee.
(2) In the case of the proviso of paragraph (1), if the person cannot acquire
the right or if excessive expense would be required
in order to acquire
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(Supp. 3) 196
it, he may pay over the value thereof.
Article 1088 (Testamentary Gift subject to Charge and Responsibility of
Testamentary Donee)
(1) A person who has received a testamentary gift subject to a charge
is bound to perform the duty which he has assumed only to
the extent
of the value of the testamentary gift.
(2) Where the value of a testamentary gift is reduced by reason of a qualified
acceptance of the inheritance or a separation of
property, the testamentary
donee shall, in proportion to such reduction, be relieved of the duty which
he has assumed.
Article 1089 (Death of Testamentary Donee before Effectiveness of Tes-
tamentary Gift)
(1) A testamentary gift shall not be effective if the testamentary donee
dies before the death of the testator.
(2) A testamentary gift subject to a precedent condition shall not take
effect if the testamentary donee dies before the fulfillment
of the condition.
Article 1090 (Null and Void Testamentary Gift and Reversion of Property
subject to Testamentary Gift)
Where a testamentary gift does not take effect, or a testamentary donee
renounces a testamentary gift, the property of a testamentary
gift reverts
to the inheritor: Provided, That if the testator has declared a different
intention in his will, such intention shall
prevail.
SECTION 4 Execution of Wills
Article 1091 (Probate of Testamentary Document or Sound Recording)
(1) The custodian of a testamentary document or a sound recording,
or
the person who discovered these, shall after the death of the testator,
present them to the court and apply for probate thereof
without delay.
(2) The provisions of paragraph (1) shall not apply to a will in the form
of a notarial document or an instrument
of dictation.
Article 1092 (Opening of Testamentary Document)
Where the court is to open a testamentary document closed with a seal,
the inheritors or representatives of the testator or any
other interested
persons must be present at the opening of such document.
Article 1093 (Designation of Executor)
A testator may designate an executor by will or commission a third person
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197 (Supp. 3)
to designate an executor.
Article 1094 (Designation of Executor by Commission)
(1) A third person who has accepted the commission mentioned in Article
1093,
must designate an executor without delay after he has knowledge
of the commission, and he must give notice thereof to the inheritors.
If
he desires to decline such commission, he must give notice of such declination
to the inheritors.
(2) An inheritor and any other interested person may, by fixing a reasonable
period, give a peremptory notice to the person who
has been commissioned
to designate an executor within such period. If no notice of the designation
by the person commissioned has
been given within such period, he shall
be deemed to have declined such commission to designate an executor.
Article 1095 (Cases
in which No Designated Executor Exists)
If there exists no designated executor pursuant to the provisions of
Articles 1093 and
1094, an inheritor becomes an executor.
Article 1096 (Appointment of Executor by Court)
(1) If there exists no executor, or if no executor remains due to death,
ineligibility, or any other cause, the court shall appoint
an executor upon
the application of an interested person.
(2) If the court appoints an executor, the court may order said executor
to effect the necessary dispositions with respect to his
performance.
Article 1097 (Acceptance or Renunciation by Executor)
(1) An executor by designation must notify the inheritor whether
he will
accept or decline the designation of executor without delay after the death
of the testator.
(2) An executor by appointment must, upon receiving the notice of ap-
pointment, notify the court without delay whether he will
accept or decline
the appointment.
(3) The inheritor or any other interested person may, by fixing a reasonable
period, give peremptory notice to the executor by designation
or ap-
pointment to give a definite answer within such period as to whether
he will accept or decline becoming an executor. If
no definite answer to
the peremptory notice has been received within such period, it shall
be deemed that the executor has accepted
designation or appointment
as executor.
Article 1098 (Ineligibility for Executor)
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An incompetent person or a person declared bankrupt may not become
an executor.