일본법상 신뢰관계파괴법리에 관한 연구- 주택임대차 계약의 해제를 중심으로 -

Abstract

In Japan, legal principle in breach of confidential relationship has long been applied in rescission of a real estate lease contract and this principle of law aims to judge whether the confidential relationship between a lessor and a lessee is breached. In Japan, this principle of law was discussed actively in the 1970s. Then after establishing the principle of law there was little discussion. However, recently this principle of law is being newly discussed. This study searched the theories and precedents of this principle of law in breach of confidential relationship so far. And this study also examined how this principle of law actually has functioned, and then it discussed what’s next in future principle of law. This principle of law in breach of confidential relationship between a lessor and a lessee are divided into two theories in Japan. One is ‘change theory’ which argues that this principle of law generally cannot be applied to general rescissions. The other is ‘theory of generalization’ which argues that this principle of law still can be applied to general rescissions. In the cases of Japan, this principle of law was applied to mainly the rescissions due to the default of rent expenses, the violation of the law on building use, extension and construction of building without notice, and transferring or subleases of the right of lease without notice. This legal principle has functioned as a contract law, a norm of promoting negotiation, a law of housing policy so far. However, today these functions of this legal principle are changing a little due to changing situations and introducing new systems. In Korea, Housing Lease Protection Act and Commercial Building Protection Act and so forth concerning real estate lease were established and come into force. Therefore the discussion on the effectiveness of breach of real estate lease contract in Japan will be helpful for our country, Korea to solve similar problems.