신인의무 법리에 관한 고찰

Abstract

Experts should negotiate transactions followed by their roles to satisfy socialexpectations. Under clients' trust, experts should also provide proper information andperform a duty to inform. The reason why experts need to provide clients withinformation, perform a duty to inform, and perform a duty to advise with faith is notsimply information asymmetry or their speciality, but fiduciary relationship, specialreliable relationship between experts and clients. The special relationship between expertsand clients exists before the conclusion of contract, in the existence of contract, and afterthe expiration of the contract, which cannot be explained through traditional contract lawprinciples. This special relationship would be advantageous to solve possible problemsbetween them. Namely, bases for experts' obligations providing clients with information,rules for conduct of emergency duties after expiration of delegation contract, physicians'full account report obligations to survivors, and physicians' obligations providingsuspects with information prior to contracts for clinical trials, eventually draw fromfiduciary relationship. And experts in this fiduciary relationship should do their best foravoiding invasion of bodies·properties' interests of clients, therefore experts' fiduciaryduties are generated. However, because of no existing notion for fiduciary relationship or fiduciary duty of loyalty in the current civil law, remaining issues for further discussion could be how wecan identify them. For this issue, additional interpretation of civil law Article 681(delegatee's duty of care) or legislative work for locating a separate provision forfiduciary duty of loyalty in delegation contract as Japan discuss in their recent propertylaw amendment process.