신의칙상의 부수적 주의의무에 관한 연구

Abstract

The definition of subordinate negligence clause originates from the principle of faith and loyalty which is the premise of the civil law and takes on the role of actualizing the principle of faith and loyalty. In any general legal relationships, when the contents of the rights become confirmed, the contents of the responsibilities that need to be executed get decided but in the case of subordinate responsibilities, the results of the damage compensation is determined first then a decision is made as to see if any subordinate details have been violated to form the exact details of the damage compensation regarding them. The subordinate negligence clause takes on various functions such as actualizing the contracts that have been derived from the main responsibilities of the creditor and the debtor. When there is negligence in executing the responsibilities, the smooth achievement of the main responsibilities in payment also becomes difficult. The subordinate negligence clause which is one of the principles that have been borne out of the principle of faith and loyalty leads to another purpose of payment between involved parties who have a relationship of rights and obligation. Here, payment refers to the act of the debtor for the purpose of credit. By execution of such payment, rights are satisfied. Therefore, a contract relationship gets carried out along with the obligation of payment but this alone does not resolve the contract relationship. If the payment obligation can be said to be an expression of obligation according to stipulation and law of the parties involved, the underlying internal obligation which fulfills and supplements is the subordinate negligence clause. The more the contract relationships become complicated and multifaceted these days, the more important the subordinate negligence clause becomes. However, the subordinate negligence clause does not have any stipulation or legal power, making it ambiguous in clarity of obligation and the standards of its scope. Therefore, this paper has the purpose of finding justifiable cause of subordinate negligence based on the general principle of faith and loyalty of civil law. By making the obligatory structure of the debtor as the basic premise and after over viewing its special characteristics and functions, various theories and case studies are looked into in terms of its contents regarding subordinate negligence clause along with acknowledged evidence under law of the subordinate negligence clause. The ultimate purpose of the research lies in clarifying the definition and structure of the subordinate negligence clause through the relationship between contract forming and fault liability.