특정물인도채무자의 선관의무와 과실에 있어서의 주의의무

Abstract

In all of Roman law, French law and Japanese law the duty of good manager’s care of the obligor, lack of which is seen as an abstract negligence, have been interpreted as a duty of care in negligence, and in this respect the same is true in Korean law. In German law without regulation concerning the duty of good manager’s care of the obligor the duty of necessary attention to the transaction is prescribed as a premise of the negligence, and in Korea and Japan, the duty of the latter is regarded as the duty of the former. As the possibility of foresight and avoidance about the consequence, the duty of attention in negligence does not means that everyone should do something positively, but it means that everyone should be careful not to make a consequence of the inexecution. In other words, it is not an obligation to do a particular act, but a hypothetical, potential and general duty. On the contrary, the duty of good manager’s care is how to work for the person, such as the obligor to deliver specific thing(Article 374 of Korean Civil Code) or the mandatary(Article 681 of Korean Civil Code) etc., in a position to perform special tasks, not a general duty for the every body. There should be several problems if the duty of good manager’s care would be regarded as the duty of attention in negligence. First, there can be an intentional or neglect inexecution of the duty of good manager’s care, and the intentional inexecution could not be able to be explained by the duty of good manager’s care. Second, it leads to a strange conclusion that not the duty of attention but the duty of good manager’s care is a requisite of the negligence. Third, the breach of the duty of the same care with respect to one’s own property for a gratuitous bailee(Article 654 of Korean Civil Code) or a person of parental authority(Article 922 of Korean Civil Code) needs intention or negligence, and there should be the possibility of foresight and avoidance about the consequence in order to be a breach of the duty by negligence. In this point, if the duty of good manager’s care should mean the possibility of foresight and avoidance about the consequence, the duty of the a gratuitous bailee or the person of parental authority were the duty of good manager’s care. But this conclusion does not match the purpose of the duty of the same care with respect to one’s own property. In sum the duty of good manager’s care should not be same to the duty of attention in negligence just like the duty of loyalty(Article 382-3 of Korean Commercial Code) should not be same to the duty of attention in negligence. Regarding the duty of good manager’s care as the duty of attention in negligence is one of the remains of Roman law, and the former duty is different from the latter duty, which is same to the duty of necessary attention to the transaction in German Law. The duty of preservation with good manager’s care for the obligor to deliver specific thing is an obligation to act, and the duty of good manager’s care is a content of the duty of preservation. That is an abstract debt taking shape through the court.