신뢰책임의 체계적 구성과 민법상 적용

Abstract

The purpose of this thesis is theorizing that a confidence liability is distinguished from a liability and a liability by a tort. The confidence liability is a legal liability that imposes obligation to perform a contract or obligation to pay for damages on confidence-maker under a fixed condition. Its final legal ground is article 2 of Civil Law[Loyalty and Good Faith]. It is originated from fides in the Roman law, Treue and Gewere in the Germanic law, Estoppel in the Anglo-American law, Externality theory and Confidence liability theory in the German law. It is distinguished from a liability by a juristic act in that a obligation to perform a contract or a obligation to pay for damages is imposed on confidence-maker in spite of absence of his self-determination and there are special relations between both. And it is also distinguished from a liability by a tort in that it requires special relations between both. In connection with a liability by a juristic act, their distinction should be started from understand about declaration of intention. The confidence liability is among conceptual elements of the principle of private autonomy. In this respect, it plays a complementary role for the principle of private autonomy with a liability of a juristic act by self-determination. If following requirements are fulfilled, the confidence liability comes into effect. That is, it requires ① existence of special relations between confidence-maker and relier, ② existence of any juristic marks, ③ existence of cause imputing to products of any marks similar to juristic act, ④ relier's recognition of the existence of any juristic marks, ⑤ relier belief in that any marks similar to juristic act are different from the truth and so his/her managing any juristic acts to it. When above requirements are fulfilled, effects come from the confidence liability, if it is not expressly stipulated in the text about them, they depend on following: first, in case that a case is discussed only between confidence-maker and relier, ① when confidence-maker knew products of any marks similar to juristic act, if there is no negligence in relier's belief in them, confidence-maker should be charged with liability to perform a contract, and if there is negligence in relier's belief in them, confidence-maker should be charged with liability to pay for damages(reliance interest). ② when confidence-maker didn't know products of any marks similar to juristic act through his/her negligence, confidence-maker should be charged with liability to pay for damages(reliance interest) only as there is negligence in relier's belief in them. ③ when confidence-maker didn't know products of any marks similar to juristic act without his/her negligence, confidence-maker should not be charged with anything in principle. Second, in case that a case is discussed among actually rightful person, confidence-maker, and relier, confidence-maker's products of any marks similar to juristic act are taken in accordance with lack of authority to represent. That is, in this case, even though actually rightful person knew that facts, he/she should not be charged with anything in principle. In addition, this theory attempts to theorize with Confidence liability theory about several particular issues in Civil Law.