착오와 담보책임의 경합에 관한 해석론적 쟁점-대법원 2018. 9. 13. 선고 2015다78703 판결을 중심으로-

Abstract

The judgement of Supreme Court en banc 2015da78703 delivered on Sept. 13, 2018 is can be assessed that the debate about mistake and defects liability ended.According to the previously dominant view of non-concurrence theory, where mistake and defects liability concurrent, the a mistaken cancellation is due after the exclusion period provided by the defect liability has excluded. However, the requirements and effects of mistake and defects liability differ from country to country, and Korea provides requirements for relatively strict mistakes. The requirements for canceling a mistake of motive regarding the nature of a thing are also strict. In countries like Japan, where the effects of cancelable legal acts are invalid and the period of exclusion is not limited, there will be an inevitable need to adopt the application of non-concurrence theory. Legal provisions concerning on mistake and defects liability is both a means of the remedy of rights and the buyer must be able to choose the remedies in his favor. In other words, mistake and defects liability should be treated as separate litigious subject, and it is not appropriate to refer to them as legal concurrence in relation to the general law and the special law. If there is criticism that the expulsion period set out in Article 146 of the Civil Act is relatively long, this could be done in the future in the direction of reducing the period through legislation. In this judgement, the Supreme Court clarified that a buyer can cancel a sale contract on the grounds of mistake even if the seller can be held responsible for the defect in the sale target. The object judgment of the study can be assessed to be justified in that it focuses on protection of buyer rights, taking into account the nation's legislative situation, and also has consistency with procedural laws.