계약법리에 관한 일고찰(자기결정을 중심으로)

Abstract

Autonomy in the contract, that is self-determination is no doubt certainly ideological foundation. However, legal requirements and legal effect of the contract law also sought to be obtained by the contracting parties in order to change in response to changes in the flow of the world will have to reflect the possibility of completion and modification by it and the circumstances that the parties faced vanara would not. Contract is based on the free will of reason and rational self-interest is the premise, because it is assumed to equal respect for him, if self-determination is or is compromised, it can not self-determination is formed, the contract is the instruction and it will fall to the appearance of the submission by him. And rights as the contents of the contract is a legitimate reason to base, is to realize the normative justification for this. Therefore, autonomy as one of the contract doctrine is not only be consistent with the liberal philosophy to guarantee to achieve the dignity of having the right subject. Eventually the formation of intention in the contract, the contract parties to assume the legal basis to carry out self-determination. However, the parties have the legal justification has been standardization range in order to fulfill the individual's profits through the exercise and im fence assumes rational selfishness.Therefore, the contract parties branches, degree of guardianship intervention by the degree of autonomy and the court is not only vary by type of contract. That is, in the contract that the contract party is symmetrical in such information force the other hand voluntary elements emphasize, owns, such as one contract party information force, elements of the guardianship is emphasized in the case of de facto contract inconvenience occurs that. Therefore, the information provided obligation as guardianship elements associated with the procedure concerning guarantee contract is a contract doctrine that can pursue a substantial reduction of the contract. And to control the legal effect to the formed in the contract decision, because the final and should be recognized as a supplementary means, Civil Code Chapter 104 stipulates as a control measure of agreement, in its requirements and the effect of self-determination there is an element of restriction or infringement. Man of the greatest feature as a contract principal, it is free will. And self-determination is an inherent limitation that the free will is not infringed. Therefore, if the situation does not do your attention on your own without the relationship with others, there is no need to supplement the self-determination through the intervention of the law. Therefore in fairness judgment against 'rash' will must be modified to infringement of self-determination by others. However, freedom of contract, that is self-determination has been violated, the free formation of the contract is not possible situation, it's excessive intervention in the autonomy of the contract subject to disable its legal effect. Therefore, through the cancellation while maintaining the ideological basis of the agreement that assumes voluntary, by the anxiety of the legal status of the other party be given the possibility of modifications to the contract conforms to the realization of self-determination.