계약 성립에서 합의에 관한 논의와 우리나라 민법에 편입 가능한 계약 성립에 관한 규정

Abstract

In this article, I review the history of discussion on agreement in contract where it's formed since the Roman law. Recently, there are many countries relevant of this topic, such as Germany, France, China, and the U.S. And the provisions related with contract formation set forth in the United Nations Convention on Contracts for the International Sale of Goods (CISG), and the Principles of European Contract Law (PECL). Herein, it is examined the certainty of material element in a contract as the object of agreement, and also the content in contract formation by realization of intent as well as through offer and acceptance. These matters are reviewed in combination with the basis of binding force for a contract. While it is generally agreed that agreement is the core of contract formation, there are much differing opinions about the remedies for a contract or the basis of binding force. As stated the above, the basis of binding force is grounded on fundamental fiduciary relationship through customary practice. Therefore contract formation may be interpreted as the legal act to focus on the consensus of intent between the parties to embrace meaningful matters as the substance of contract is formed by customary practice. And the scope of liabilities following such contract formation may be expanded in case of culpa in contrahendo i.e. fault in conclusion of a contract. It requires further review whether it is advisable to have an express provision on agreement in connection with contract formation, and whether it would be necessary to include in the Korean Civil Code, as a general rule, provisions embracing the formation of various contracts such as electronic transaction or standardized clauses.