Judging Capacity in Korean Private Law

Abstract

Most jurisdictions of the civilian tradition assume that a person needs to have a certain degree of mental capacity to take part in legal transactions. The Korean Civil Code also presupposes the capacity to form an intent as a prerequisite of any valid juridical act, although its definition is not expressly given. Doctrine and case law try to understand the concept from a cognitive perspective, concentrating their efforts on scrutinizing the cognitive capabilities of the concerned person. The author disagrees with this approach, whose definition is too vague to handle in practice and has a danger of discrimination. It is instead submitted that volitional elements must be integrated into the concept of capacity. According to this test, the capacity is to be denied only when cognitive disturbances interfere with forming an intent to such a degree that it is impossible to speak of a self-determination. This conclusion is justified by the principle of private autonomy and some convincing examples.