하자담보책임법 개정을 위한 논의와 방향성을 위한 소고 - 독일 개정민법의 내용을 중심으로 -

Abstract

Current regulations on liability for warranty against defects (hereinafter called “warranty liability”) under Article 580 of Korean Civil Law contain very abstract and ambiguous provisions, which were contrary to those regulations enforced in major countries of Continental law system that is well characterized by further and unambiguous provisions about requirements or matter of facts for justification of liability. Furthermore, most countries of Continental law system has established legal provisions on permission of justifiable claims for contractual termination and reduction in price as a part of effectiveness of warranty liability under their current civil law, so that those provisions can be effective in the actual imposition of liability for damages on certain sellers to the extent that their acts satisfy special requirements like malicious intent. Contrary to these countries,however, Korean Civil Law has no express provision on permission of claims for reduction in price due to defects of any goods, but provides that buyers may terminate their contract with sellers only when the former hardly expect any successful achievement of contractual goals, and also provides that the former may claim damages to the latter in other cases. Moreover, current Korean Civil Law stipulates that sellers shall bear any strict liability for damages due to defects of subject matter in trade, but it still exposes a question of ambiguity about which requirements and damages shall be applicable to such strict liability. Recent international discussions about warranty liability deals with liability for warranty against defects of subject matter in trade as a part of liability for any default of obligation within a framework of integrated liability laws, and also treats the defects as a category of integrated requirements under said laws. The Article 437 of Revised German Civil Law has unified provisions on liability for any damage against defects of goods and rights vested therein. Furthermore,said Article 437 stipulates that sellers have their mandatory responsibility for offering and selling indefective goods to buyers in the aspect of subject matter and rights, and also incorporates any liability for damages against defects into the Contractual Obligation Breach Act (Leistungsstörungsrecht) in force. But Korean civil law establishes provisions on warranty liability, apart from liability for non-fulfillment of obligations, without any stipulation on possible concepts of defect. That is why it has many challenges in its construction and execution. Starting from these points, this study reflects on Korean circumstances of energetic discussions on revision of current Civil Law regarding warranty liability,with a view to examine such legal composition and major considerations of the Warranty Liability Act under German Civil Law as shown in the course of modernization of obligation laws, so that it focuses investigation specially on the Warranty Liability Act among other considerations required for discussions on revision of Korean Civil Law. The content and legal composition of Warranty Liability Act under the German Civil Law becomes one of major matters required for reference in the aspect of comparative law, even if Korean legislative authorities enact legislations on warranty liability and other non-performance cases under Civil Law in near future. From the above perspectives, this study addresses composition and major considerations of provisions on liability for damages against defects under revised German Civil Law, focusing on investigating major contents and favorable orientations of the Revised Korean Civil Law.