계약체결상의 과실책임에 관한 연구

Abstract

Liability based on fault ina contract means to admit compensation for damages in the case of suffering losses to the other party as a result of the contracting party's faultduring the contract negotiation process between two parties. The civil law expressly stipulates liability based on fault in a contract by using section 535 of the law. Liability based on fault in a contract is the system used in German civil law, which, unlike our civil law, has the practical advantage of admitting liability based on fault in a contract with no general regulations about contractual obligations and tort liability. On the other hand, although the civil law doesn't have the practical advantage of admitting liability based on fault in a contract because of general regulations about contractual obligations and tort liability, it is criticized for accepting German civil law. Section 535 of the civil law was controversial concerning practical advantage at the time of enactment recently, questions were raised about admitting liability based on fault in a contract as a type of independent responsibility. Precedence and theory in Germany admit: ① liability based on fault in a contract in the run-up to the conclusion of a contract, ② liability based on fault in a contract in the case of a valid contract, ③ liability based on fault in a contract in the case of a void or cancelled contract. So, the civil law recognizes that German law has a problem aboutmaking a broad interpretation of these types of liability based on fault or applies them analogously. However, section 535 of the civil law solves these types of cases not as a principle of law but as a default on an obligation or a tort liability. Therefore, section 535 of the civil law should be deleted because the regulation is losing its reason to exist.