유럽계약법상 신의성실의 원칙의 내용과 우리민법의 시사점

Abstract

This paper is about “the rule of good faith on PECL and its implications to Korea civil law”. Before the content of PECL in detail is explained, different and same points between PECL and Korea civil act may be checked. According to Korea civil act § 2 I, the exercise of rights and the performance of duties shall be in accordance with the principle of good faith. On the other hand, on PECL is regulated a criteria of "fail dealing and good faith" at the principle of good faith. This point is obviously the different on the principle between PECL and Korea civil act on which the legal act of fair dealing is provided through Korea civil act § 104. PECL also regulates freedom of contract(§ 1:102), interpretation and supplementation(§ 1:106), reasonableness(§ 1:302), imputed knowledge and intention(§1:305), negotiations contrary to good faith(§ 2:301), express, implied and apparent authority(§ 3:201), mistake as to facts or law(§ 4:103), fraud(§ 4:107), excessive benefit or unfair advantage(§ 4:109) unfair terms which have not been individually negotiated(§ 4:110), exclusion or restriction of remedies(§ 4:118), relevant circumstances(§ 5:102) and change of circumstances(§ 6:111) in accordance with the principle of good faith and fair dealing. Unfortunately, those regulations can't be found on Korea civil act even if Korea civil act may be contributed to the globalization of civil act partly. The content and its analysis of those regulation are designed in detail on the paper, and then concrete implications to Korea civil law try to be described as far as possible. Finally, we cautiously should consider to accept regulations of PECL about "principle of good faith". If that's do so, those regulations deeply and widely have to researched.