공동주택 분양자의 정보제공(설명)의무와 수분양자의 자기결정권 - 거래적 불법행위책임과 계약책임의 성립 여부에 대하여 -

Abstract

Today, it is required informed consent to seller in sale of goods in case of imbalance of their weapon(economic power or intelligence capacities etc.). Condominium so is the case of contract. This thesis studied whether it is admitted to make reparation for alimony, furthermore property damages. Generally, it is accepted to compensate on alimony based by infringement of autonomy right, but it is denied about property damages in judicial cases. And so, I considered on judicial judgement tendencies from cases of Japanese and Korean Supreme Court. I got to the conclusion as follows: (1) As is well know, informed consent is, on the medical liability law, was first established. It is recognized as a prerequisite for a patient's right to protect self-determination, moreover it will be consequences to the principle of self-responsibility. Such a doctrine is also the case of a condominium sale contract. In the case of marketing method of the condominium construction after the previous sale is generalized as South Korea, informed consent in the sale contract is especially important. Buyer is only to determine whether he enter into a contract with confidence in the information(description) to be provided by seller. Recently, it is to pay attention to Korea Civil Code §436-2 ①(amended) that creditors must be faithfully described guarantor for the information about debtor’s credit. (2) Sellers are not a few who, because they are a merchant to pursue a profit, entice buyer into contracting by overissue with unconfirmed information or excessive advertising such as the surrounding environment and architectural plan. But, because buyers are supposed to determine that there is no or not to conclude a sale agreement based on the contents which is provided from the seller, if entered into a contract, buyers will bear payment obligations as a party to the contract of sale of a particular condominium to be completed in the future. If it is not completed as advertising or explanation provided at the stage of pre-sale contract, it is possible to civil liability occurs. (3) Korean Supreme Court take a stance only a description of the offer or incentive information provided in the course of pre-sale contract negotiations, for that reason it has taken the position that it is not just what constitute a contract obligations. However, the information and descriptions would be desirable to constitute contract-oriented intention, because buyers make a contract on the basis of a description or information to be provided by seller. Therefore, it is not meaningful discussion or explanation whether they are contract contents or not. (4) In general, if seller violated the informed consent, the court may cease to recognize the alimony to buyer. Such a thing is also true of Japan. But, the leading cases of Korean Supreme Court have been a trend to recognize compensation for the property damage, as well as alimony. This trend is thought to be due to taking the case of Korea, because it is usually taken of marketing method of the condominium construction after the previous sale. Therefore, the faithful fulfillment of informed consent from seller is desired in the process of pre-sale contracts. This is the same no matter whether configured as tort liability or default liability.