보증의 성립에 관한 프랑스의 법리

Abstract

This article aims to supplement the other one on guarantee contract, which I wrote a few years ago, working as a member of the Committee for Revision of the Civil Code installed in the Ministry of Justice in 1999. At that time the Committee considered, among other things, introducing formality of written document for validity of guarantee contract to the Korean Civil Code. As a reporter on the subject of guarantee contract, I made comparative research on the guarantee laws of the major foreign countries in continental Europe, and published the results of the research as a part of an atrticle of essentially de lege ferenda character. Very recently, so some years after I had my paper on that matter published, I found the information on the French law in that paper very insufficient and it was likely to give a distorted picture about the functions that written document might perform in the French law of guarantee contract, a major figure of personal security in France. What I missed in the previous paper was Art. 1326 C.c., which provides that all the unilateral contracts, to which guarantee contract belongs without any doubt, are in principle required to be proved by written documents. This article tries to explain the meaning of the provision in its historical context and to cast light on the French courts’ experiments with Art. 1326 C.c. as a tool for the consumer protection.