미국법상 이익구분론에 대한 기술적 분석(descriptive analyse)과 시사점
The descriptive analyse of interest classification in USA law and implications for Korea law
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This paper is about the descriptive analyse of typical interest classification in USA act(contract). A different defense of this classification would rest on their description of what courts actually do. If restitution, reliance and expectation interests are what courts do in fact protect, it might be useful to classify remedies in that way eve if there is no normative significance to that classification. This paper is to show that three way classification is also unhelpful as a only descriptive matter. This claim requires qualification. Through the typical interest classification, it is incorrect to identify restitution and reliance damages as being among the remedies that courts regularly award. Today, this interest classification have attained such prominence that they are often assumed to be the only items on the menu or the only interests that courts might plausibly protect. These interests have also become accepted as the most useful way to classify various remedies, especially in the contract law. In this paper is argued that a large number of cases do not protect any of three interests and do not fir their classification. Moreover, any cases do award reliance damages and protect the reliance interest. These cases will often have little in common with one another and could be described as protecting the same interest is often of no significance. The typical three interest classification is no a useful descriptive tool. Finally, in this paper will be showed how this descriptive analyse of interest classification is affected in Korea law even if there are a little deferent points between the USA typical interest classification and Korea interest classification.
Abstract
This paper is about the descriptive analyse of typical interest classification in USA act(contract). A different defense of this classification would rest on their description of what courts actually do. If restitution, reliance and expectation interests are what courts do in fact protect, it might be useful to classify remedies in that way eve if there is no normative significance to that classification. This paper is to show that three way classification is also unhelpful as a only descriptive matter. This claim requires qualification. Through the typical interest classification, it is incorrect to identify restitution and reliance damages as being among the remedies that courts regularly award. Today, this interest classification have attained such prominence that they are often assumed to be the only items on the menu or the only interests that courts might plausibly protect. These interests have also become accepted as the most useful way to classify various remedies, especially in the contract law. In this paper is argued that a large number of cases do not protect any of three interests and do not fir their classification. Moreover, any cases do award reliance damages and protect the reliance interest. These cases will often have little in common with one another and could be described as protecting the same interest is often of no significance. The typical three interest classification is no a useful descriptive tool. Finally, in this paper will be showed how this descriptive analyse of interest classification is affected in Korea law even if there are a little deferent points between the USA typical interest classification and Korea interest classification.
참고문헌 (27)
- 명순구, "미국계약 법입문", pp.184~ (2004), 법문사
- 박영복, "미국 계약법상 손해배상의 범위", 민사법학, (35), pp.377~417 (2007), 한국민사법학회
- 이종엽, "계약해제의 신뢰이익의 배상에 관한 판례분석", 사법행정, 48(11), pp.38~ (2007)
- 곽윤직, "채권총론", pp.114~ (2007), 박영사
- 김상용, "채권총론", pp.157~ (2004), 법문사
- Edward Yorio, "The Promissory Basis of Section", Yale L. J, 101, pp.129~131 (1991)
- Robert A. Hillman, "Questioning the “New Consensus” on Promissory Estoppel: An Empirical and Theoretical Study", Columbia L. Rev, 98, pp.580~ (1998)
- Randy E. Barnett, "The Death of Reliance", J. Legal Education, 46, pp.518~ (1996)
- Mary E. Becker, "Promissory Estoppel Damages", Hofstra L. Rev, 16, pp.131~ (1987)
- Sidney W. DeLong, "The New Requirement of Enforcement Reliance in Commercial Promissory Estoppel", Wisconsin L. Rev, pp.943~970 (1997)
- Daniel A. Farber, "Beyond Promissory Estoppel: Contract Law and the “Invisible Handshake,"", University of Chicago L. Rev, 52, pp.909~ (1985)
- Jay M. Feinman, "Promissory Estoppel and Judicial Method", Harvard L. Rev, 97, pp.687~8 (1984)
- W. David Slawson, "The Role of Reliance in Contract Damages", Cornell L. Rev, 76, pp.202~206 (1990)
- Lon Fuller, "The Reliance Interest in Contract Damages", Yale L. J, 46, pp.52~54 (1936)
- Michael B. Kelly, "The Phantom Reliance Interest in Contract Damages", Wisconsin L. Rev, pp.1764~1767 (1992)
- Todd D. Rakoff, "Fuller and Perdue’s The Reliance Interest as a Work of Legal Scholarship", Wisconsin L. Rev, pp.213~ (1991)
- Michael B. Kelly, "Phantom Reliance Interest in Contract Damages", Wisconsin L. Rev, pp.1774~1776 (1992)
- 학술지(정기간행물) 학술대회논문 단행본 보고서 학위논문 인터넷자원 기타, "Restating the “Reliance Interest"", Cornell L. Rev, 67, pp.717~ (1982)
- Lon Fuller, "The Reliance Interest in Contract Damages", Yale L. J, 46, pp.373~377 (1936)
- Lucian Ayre Bebchuk, "Information and the Scope of Liability for Breach of Contract: The Rule of Hadley v. Baxendale", J. L. Econ & Org, 7, pp.289~291 (1991)
- Robert S. Summers, "Contract and Related Obligation: Theory, Doctrine, and Practice", West, 41 (1997)
- Randy E. Barnett, "Contracts: Cases and Doctrine", Aspen, 72 (1995)
- John P. Dawson, "Contracts: Cases and Comment", Foundation, 5 (1998)
- Charles L. Knapp, "Problems in Contract Law: Cases and Materials", Aspen, pp.892~893 (1993)
- Stewart Macaulay, "The Reliance Interest and the World Outside the Law Schools' Doors", Wisconsin L. Rev, pp.247~ (1991)
- Louis Kaplow, "Rules Versus Standards: An Economic Analysis", Duke L. J, 42, pp.557~ (1992)
- 김영두, "채무불이행과 신뢰손해의 배상", 재산법연구, 22(3), pp.127~151 (2006), 한국재산법학회