계약상 협력의무에 관한 연구 - 유럽서비스계약법원칙을 중심으로 -

Abstract

In the Korean judicial circles, they have been passive about duty to co-operate including creditor's duty of accept. However since their position came from fears for claim absolutism and totalitarianism so it is hard to be admitted in the modern obligation law system. Under this situation, duty to co-operate has been recognized as a very important obligation for conclusion of a contract in Anglo American law and newly made Principles of European Contract Law(PECL) relating to European unity as well as Principles of European Law on Service Contracts(PELSC) which is based on PECL are also specified the contracting parties' duty to co-operate including creditors. Accordingly, our judicial circles need to positively considerate and introduce duty to co-operate in Korean private law. In this article, with the intention above, I categorized Duty to Co-operate in PECL and PELSC by contents. Roughly speaking, it can be materialized as duty to inform, duty to direct, duty to warn, pre-conditional duty to co-operate and duty to accept. Pre-conditional duty to co-operate includes duty to hand over the thing or to give the control of it, or to give access to the site where the service is to be performed, duty to provide components, materials and tools and duty to obtain permits or licenses. These materializations of duty to co-operate have some parts which have not been yet refined so that it seems they need the elaborate measure more than the accurate measure. I believe this attempt can help considerate duty to co-operate in service contract law in civil law and further it can promote to be legislated in our nation.