계약체결상의 과실과 원시적 불능

Abstract

Jhering’s “Culpa in contrahendo oder Schdensersatz bei nichtigen oder nicht zur Perfection gelangten Verträgen"(1861) seriously affected legislation Germany Civil Code(1900). Germany Civil Code included Initial impossibility et cetera in the title of Culpa in contrahendo, but Korean Civil Code included only Initial impossibility in the title of Culpa in contrahendo. So more complicated controversy (than Germany) last in Korea. Complicated controversy was originated from the theory of Culpa in contrahendo. Before the legislation Germany Civil Code(1900), German common law that was based on Actio system of the Roman law applied in Germany. So, numerous cases that are not included Actio are rejected. Jhering developed the theory of Culpa in contrahendo for surpassing the Actio system, but he can’t overcome it because the theory of Culpa in contrahendo applied to individually specified cases.(If Jhering extrated his theory from Thomasius’s proposition of ‘Non turbabis alios, nec impedies in usu iuris sui’, so his theory had the concept of 「general」 negligence, Complicated controversy maybe didn’t arise.)Anyway, Rivision of the Law of Obligations of German Civil Code(2002) revised widely Articles that were controverted subjects – especially, normal Duty of Providing Information -. So, controversy in Germany is ended to some degree. therefore it is necessary for legislators of Korea to refer to Revision of German Civil Code(2002) in connection with rivision of Korea Civil Code § 535(Culpa in contrahendo).