완결조항에 관한 소고

Abstract

Integration clause is - also usually described as ‘merger clause’, ‘integrated agreement clause’ - an express agreement that the document which contains the clause integrates the contract. It is inserted to provide a degree of certainty of the contract which contains the clause. It is derived from the parol evidence rule which is established in the Anglo-American legal system. Despite its name, the parol evidence rule is not a rule of evidence and even though it is generally discussed in connection with the interpretation of writings, it is not a rule of interpretation or construction, but is a rule of substantive law. Although not itself a rule of interpretation, the parol evidence rule identifies what the proper subject matter of interpretation is. It is a common law principle that a writing intended by the parties to be a final embodiment of their agreement cannot be modified by evidence of earlier or contemporaneous agreements that might add to, vary, or contradict the writing. This rule usually operates to prevent a party from introducing extrinsic evidence of negotiations that occurred before or while the agreement was being reduced to its final written form. The applicability of integration clause and the parol evidence rule is pre-conditioned by the integration of the agreement. The extent of integration achieved by an express integration clause is always a matter of intention which is to be determined by construction. There are two(2) issues concerning the content and scope of integration. First, does the document integrate the entire contract or only part of it? This will necessarily depend on the wording of the clause. Second, is the clause restricted to express terms, or does it also apply to other matters such as implied terms and the prior representations? There are also some issues concerning the validity of the integration clause such as rescission of the contract by a vitiating factor, mandate statute, public policy, and not negotiated standard form contract. The purpose of this article is to survey and introduce such issues having been discussed in Anglo-American legal system briefly. What is more is to attempt to reveal my opinion about the function and/or effect of the integration clause under the Korean legal system, substantive and procedural. That’s because no scholarly study has still emerged, despite getting higher is the frequency of using integration clause as boilerplate in Korea as well.