계약체결과정에서의 설명의무와 선택권의 보호 - 대법원 2010.2.25. 선고 2009다86000 판결에 대한 평석 -

Abstract

Duty of explanation demanded in the process of making contract is based on the principle of good faith. The Precident says that this duty is derived from law, contract,customs or common logic. Duty of explanation in negotiation toward contract can be classified as subordinate duty compared with primary duty. This duty, on which agreement is settled, can be classified duty in contract. Likewise responsibility on this duty constitutes responsibility of contract and following effect occurs. In rest of all case, duty of explanation can be classified as responsibility of tort. Duty of explanation is composed of three elements ; negotiation, profit of disclosure and intention. Profit of disclosure is admitted for protection to the right of option or weak person to information. If negative elements emerges, profit of disclosure is denied. The right of option should be assured to alienation of real property. But profit of resale or current price are presuggested conditions, so that neccesity to explain those conditions can be denied. It is the most attracting point, being quoted from this precedent, whether it is possible to completely assign the ownership of objective, as a capital duty, or not. On the contrary, duty of information supply, as a subordinate duty, should be determined regarding to accessibility to information among concerned parties in the range of intersection between the principle of self-determination freedom and the principle of good faith. By the way, maket conditions, in alienation contract of real property, such as attainability of advantageous purchasability and profit of resale are open to any one. Because recognising those maket conditions can be easily expected, duty of disclosure to those maket conditions is denied. In conclusion this precident is meaningful as the suggestion of definite standard denying responsibility of explanation in alienation contract of real property.