계약체결상의 과실책임의 재검토

Abstract

A Critical Analysis on Culpa in ContrahendoChoong-Hoon LeeIt is widely understood that culpa in contrahendo means the liability to compensate for the loss which is incurred as a result of one party’s misconduct o another party in the process of negotiating a contract as well as at the stage of preparing for the contract. Culpa in contrahendo is known to be derived from certain unique features of German laws. German tort laws list the cases where tort is established, but they do not cover the pure property loss. Thus, the pure property loss which is incurred in the process of negotiating a contract, shall be subject to the contract liability. On the other hand, the Korean Civil Code extends the liability to compensate for loss to the property loss which is incurred at the contract negotiating state. Therefore, we are of the view that there is no need to introduce the theory of culpa in contrahendo to the Korea Civil Code.In Korea, it is a prevailing view that in cases where the property loss incurs in the process of negotiating a contract and where a contract is valid, culpa in contrahendo shall be established even when the contract in question becomes invalid. However, it is possible to interpret that under the Korean Civil Code, the liability of torts could be established even when culpa in contrahendo is denied.Pursuant to Article 535 of the Korean Civil Code, the liability to compensate for loss is assumed when a party of contract was aware of the fact that a contract of initial impossibility was invalid or when the party was in a position to recognize the fact. On the other hand, in 2002, Germany revoked Article 307 of its Civil Code which contained the same provision as the Korean Civil Code. Therefore, it is appropriate to revoke Article 535 of the Korean Civil Code.