韓國 契約法의 成立과 展開 - 總論的 課題를 중심으로 -

Abstract

This paper is description of the Formation and Development of the Korean Contact Law that is focused on several problems of the General Rules of Contract Law in current Korean Civil Code. Taking into accoount the meaning of this International Conference, in this paper I do not only describe the results of Korean Civil Law studies on those problems but I compare the provisions for those problems of the Chinese Contract Law(1999) with that one of the Korean Contract Law from a standpoint of comparative law, and moreover I introduce the related provisions for those problems of the Draft of the Revised Bill of Japanese Law of Obligations(2009) from a standpoint of legislation. The remarkable difference between the Contract Laws of the Three Esat Asian countries that is introduced in this paper is as follows. (1) The difference of method of regulation on formation of contacts by Standard Form Conditions There are two ways(method) of regulation on formation of contacts by Standard Form Conditions, the one way of regulation is establishment of a specific legislation on standard form conditions like the German Act on General Conditions(1976), and the other way of regulation is including provisions on general conditions in the civil code like in the German Schuldrechtreform and the new Dutch Civil Code. The Korean Civil Code take the former way of regulation(establishment of a specific legislation) on Standard Form Conditions like the German Act on General Conditions(1976), but the Chinese Contract Law(1999) take the latter way of regulation(including provisions on general conditions in the Civil Code). The current Japanese Civil Code has no provision of general conditions, but the Draft of the Revised Bill of Japanese Law of Obligations proposes that provisions on general conditions must be included in the Civil Code. (2) The rule of pre-contractual liability caused by negligence(the “culpa in contrahendo” doctrine)The German theory of Pre-contractual liability(the “culpa in contrahendo” doctrine) means that the liability of a party who has caused damage to the other party's property with ‘negligence’(breach of duty) in “pre-contractual stage”(preparatory period to conclude a contract), and a bit of this German theory has been codified in the Korean Civil Code(§535). However the Chinese Contract Law(1999) codify the general rule for the pre-contractual liability caused by negligence(culpa in contrahendo), prescribing the Section 42 of the Chinese Contract Law “In pre-contractual negotiations a party who caused damage to the other party's property for some reason must compensate another party for damages.”Besides the Chinese Contract Law(1999) prescribes that negotiating party who caused damage to another party for making disclosure of another party's busuness-secret or making unfair use of it must compensate the other party for damages(§ 43), and that the pre-contractual liability of a party who has caused the contract null and void(§ 58). The current Japanese Civil Code has no provision of the pre-contractual liability caused by a party's negligence, but the Draft of the Revised Bill of Japanese Law of Obligations proposes to establish a new provisions that codify the duty of negotiating parties(§ 3.1.1.09 ∼ 3.1.1.11). (3) The Principle of the Change of Circumstances(Hardship)Even though the performance of a contract becomes more onerous for one of the parties, that party is nevertheles bound to perform its obligations. But it is not always justifiable for the disadvantaged party to be bound to perform its obligations where the occurrence of supervening events(the Change of Circumstances) fundamentally alters the equilibrium of the contract. Thus where the occurrence of supervening events which could not have been foreseen at the time of the conclusion of the contract the performance of contract has become harder(Hardship), the disadvantaged party has to be entitled to request renegotiations and it has to be entitled to terminate or to adapt the contract with a view to restoring its equilibrium. The Korean Civil Code, the Chinese Contract Law(1999), and the Japanese Civil Code all the Contract Laws of the Three Esat Asian countries have no provision on the Principle of the Change of Circumstances(Hardship). But the Draft of the Revised Bill of the Korean Civil Code(2004) proposed to establsh a provsion on the Principle of the Change of Circumstances(Hardship)(§ 544-2), and the Draft of the Revised Bill of Japanese Law of Obligations proposes to establish a new provisions on the Principle of the Change of Circumstances(Hardship)(§§ 3.1.1.91∼ 3.1.1.93).