상사거래에서의 신의칙법리의 체계
Systematic Approach to the Application Rule of Good Faith Doctrine in Commercial Transaction
0
조회
0
다운로드
4
인용
0
참고문헌
키워드
초록
In this paper, I tried to collect and choose the judgement standards for application of the good faith doctrine in the commercial transaction. And also I did a comparative approach to the application method of good faith doctrine in the commercial tranaaction. And lastly I did construct the application system of good faith doctrine in the commercial transaction. UCC Commentators support for including an objective component in the good faith analysis under UCC section 1-208. First, a subjective standard would produce unpredictable and irregular results which undoubtedly would work harshy results against debtors. And so such a subjective standard may be not adopted. Second, the Code drafters may have intended an objective standard. Third, purpose of the above section is to protect the debtor and the purchaser. Fourth, UCC section is to prevent creditors from gaining any unfair advantage. Fifth, the principles of the law and equity. Sixth, common sense and tradition. Seventh, dealing and usage of trade. Eighth, calls for flexibility to promote the continued growth of commercial practices. Among the above special standards of good faith doctrine in the commercial trade in UCC should be considered as our criteria adopted in the good faith doctrine rule of commercial trade. The application rule of good faith doctrine adopted in the non-business transaction does apply basically to the commercial cases. And also some special standards needed to the application of good faith doctrine in the commercial transaction should be additionally reviewed. Of course this commercial rule does apply to the commercial cases if necessary, accordingly commercial application rule of good faith doctrine does not always apply to the commercial transaction.
Abstract
In this paper, I tried to collect and choose the judgement standards for application of the good faith doctrine in the commercial transaction. And also I did a comparative approach to the application method of good faith doctrine in the commercial tranaaction. And lastly I did construct the application system of good faith doctrine in the commercial transaction. UCC Commentators support for including an objective component in the good faith analysis under UCC section 1-208. First, a subjective standard would produce unpredictable and irregular results which undoubtedly would work harshy results against debtors. And so such a subjective standard may be not adopted. Second, the Code drafters may have intended an objective standard. Third, purpose of the above section is to protect the debtor and the purchaser. Fourth, UCC section is to prevent creditors from gaining any unfair advantage. Fifth, the principles of the law and equity. Sixth, common sense and tradition. Seventh, dealing and usage of trade. Eighth, calls for flexibility to promote the continued growth of commercial practices. Among the above special standards of good faith doctrine in the commercial trade in UCC should be considered as our criteria adopted in the good faith doctrine rule of commercial trade. The application rule of good faith doctrine adopted in the non-business transaction does apply basically to the commercial cases. And also some special standards needed to the application of good faith doctrine in the commercial transaction should be additionally reviewed. Of course this commercial rule does apply to the commercial cases if necessary, accordingly commercial application rule of good faith doctrine does not always apply to the commercial transaction.
참고문헌 (27)
- 곽윤직, "민법총칙" (1989), 박영사
- 황적인, "현대민법론 I(민법총칙)" (1985), 박영사
- 이영준, "민법총칙" (1987), 박영사
- 김주수, "민법총칙" (1990), 삼영사
- 김영호, "상법총칙" (2004), 팔마도서
- 김영호, "회사법" (2004), 팔마도서
- 김영호, "경제법신론" (2004), 팔마도서
- James Brook, "Sales and Leases", Little Brown and Company, ~ (1994)
- Steven L. Emanuel, "Contracts, emanuel law outline", Aspen, ~ (2006)
- John F. Dolan, "Uniform Commercial Code", Little Brown and Company, ~ (1991)
- Brian A. Blum, "Contracts" (2007), Wolters Kluwer
- Stewart Macaulay, "Contracts in Action, In Contemporary Legal Education Series" (1995)
- John Honnold, "Uniform Law for International Sales" (1982), Kluwer Law and Taxation Publishers
- Tory A. Weigand, "The Duty of Good Faith and Fair Dealing in Commercial Con tracts in Massachusetts", Massachusetts Law Review, 88(4)
- William A. Walsh, Jr., "Good Faith and Fair dealing : New Issues and Nagging Concerns", Doc Name ACREL, Article, 2, 01, pp.2001, ~
- E. Allen Farnsworth, "Good Faith Performance and Commercial Reasonableness under UCC", Chi.l.Rev, 30, pp.666~676 (1963)
- Robert S. Summers, "The Gerneral Duty of Good Faith : Its Recognition and Conceptualization", Cornell Law Review, 67 (1982)
- Robert S. Summers, "Good Faith in General Contract Law and the Sales Provisions of the UCC", Va. L. Rev, 54, pp.195~215 (1968)
- Clayton P. Gillette, "Limitations on the Obligation of Good Faith", Duke L. J, 1981, pp.619~ (1981)
- Todd D. Rakoff, "GOOD FAITH IN CONTRACT PERFORMANCE: MARKET STREET ASSOCIATES LTD. PARTNERSHIP V. FREY", HARVARD LAW REVIEW, 120 (2007)
- Susan A. Wegner, "Good Faith and the Need for a Uniform Standard", Marquette Law Review, (Summer) (1990)
- Jeffrey A. Shapiro, "Illinois Standard of Good Faith under Section 1-208 of the UCC : Watseka First National Bank versus RUDA creates a Subjective Standard", Depaul Business Law Jounal, (Fall) (1991)
- Denise R. Boklach, "Commercial Transactions : UCC Section 1-201(19) Good Faith---Is Now the Time to Abandon the Pure Heart", Empty Head Test, 1992, pp.(Winter), ~
- E. Allen Farnworth, "Good Faith Performance and Commercial Reasonableness under the UCC", U.Chi. L. Rev, 30 (1963)
- "Good Faith and Fair Dealing; What Does It Really Mean in Construction Contracts?"[URL]
- Emily M. Weitzenböck, "Good Faith and Fair Dealing in the Context of Contract Formation by Electronic Agents", emily.weitzenboeck@jus.uio.no, ~
- 加藤亮 太郎, "取引における信義誠実の原則", 神戸学院法学, 36(3) (2007)