진술·보장위반책임의 법적 쟁점에 대한 소고 - 법무부 민법개정위원회 「계약법 개정안」을 중심으로-

Abstract

This study examines the legal issues surrounding the liability for breach of representations and warranties in Korean contract law, with a focus on the recent "Contract Law Amendment Bill" proposed by the Ministry of Justice's Civil Law Amendment Committee. In Anglo-American law, representations and warranties generally refer to the seller's statements and guarantees to the buyer regarding facts or legal relationships related to the contract. Breach of such representations and warranties is fundamentally considered a contract violation, and the resulting liability is recognized as strict liability. In contrast, South Korea has maintained a dual liability system of non-performance of obligation and warranty liability, leading to academic debates on how to interpret the strict contractual liability for breach of representations and warranties. The recent amendment bill includes provisions related to the legal nature of liability for breach of representations and warranties, which are expected to significantly impact the existing discourse. Notably, the proposed Article 390 maintains the current provision requiring intent or negligence of the debtor as a condition for liability for non-performance, while adding a new paragraph 2 that explicitly allows for strict liability based on agreement between parties. Furthermore, Article 574 of the bill unifies contractual liability by stipulating that damages for warranty liability shall be governed by the provisions for damages due to non-performance of obligations. This study argues that if the amendment passes, it will clarify the liability for breach of representations and warranties as a form of non-performance liability. However, issues remain concerning which specific representation and warranty agreements fall under Article 390, paragraph 2. Additionally, breach of representations and warranties may constitute a "defect" under Article 570, potentially leading to further discussions on the applicability of warranty liability provisions unless parties agree to exclude them. The research contributes to the ongoing academic discourse on the legal nature of liability for breach of representations and warranties in Korean contract law and provides insights into the potential implications of the proposed amendments.