계약교섭의 중단으로 인한 손해배상책임

Abstract

If the liability to compensation for demage in the process of negotiating a contract incurred is able to be accepted, it concerns Culpa in Contrahendo. Culpa in Contrahendo is known to be derived from certain unique features of the German Civil Code. Because German tort statutes(§§823, 826 etc.) do not cover the pure property loss, the pure property loss which is incurred in the process of negotiating a contract shall be subject to the contract liability(=Culpa in Contrahendo). On the other hand, the Korean Civil Code §750(tort statute) covers the pure property. Therefore, A minority opinion is that there is no need to introduce the theory of Culpa in Contrahendo to the Korean Civil Code. However I can't assent to the opinion of the minority. I clarify my position for several reasons. First, though the tort statute of Swiss Civil Code and the tort statute of Austrian Civil Code are general clauses as well as the tort statute of Korean Civil Code, all of these countries recognize Culpa in Contrahendo. Second, my position is related to the theory of old civil suit-object and the disposal of parties to the civil suit in Korea. Third, §535(Culpa in Contrahendo) of Korean Civil Code provides that the liability to compensate for loss is assumed when a party of contract is aware of the fact that a contract of initial impossibility is invalid or when the party is in a position to recognize the fact. So we are of the view that there are needs to interpretate by analogy of §535(Culpa in Contrahendo statute) and apply the statute to the liability to compensation for demage in the process of negotiating a contract incurred. In Conclusion, I must insist on this fact that Culpa in Contrahendo is a similar contract liability native to statute(§535 of Korean Civil Code) in Korea.