계약체결상의 과실책임 - 동아시아에서 유럽민사법의 계수와 토착화 - (Culpa in Contrahendo in Korea Civil Law - Reception of the European Civil Law and Independance in East Asia -)

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초록

This paper has been revised and supplemented on the basis of the presentation and its discussions in the 4th international Academic Conference on Civil Law of East Asia in Taiwan(2014.11.29.-11.30). This is a brief national report on the Culpa in Contrahendo in Korea, with the respect to reception of and independence from the European Civil law in East Asia. In this Conference have been followed some reports of other nations, including China, Japan and Taiwan.
The doctrine of Culpa in contrahendo (fault during contractual negotiations) which goes back to R. von Jhering in 1861. He advocated a contractual duty through the imposition of a tacit contract, in view of the limited range of delictual liability, which had been considered to have some defects. According to his thoughts, damages should be recoverable against the party whose blameworthy conduct during negotiations for a contract brought about its invalidity or prevented its perfections. Thereafter, the courts filled this gap of the German Civil Code with the development of culpa in contrahendo. The modernisation of the Law of Obligations of the Civil Code in 2001, this doctrine is provided for by statute. (art. 311, para. 2 in connection with art. 280 para. 1 and art. 241, para. 2 of the German Civil Code).
This topic has a more significant meaning than any other subjects with respect to the reception of the European Civil.
First, this conception being introduced from Germany to East Asia (Korea, Japan and Taiwan, except China, whose system mainly comes from CISG) but to a different degree affected in each state. It is also closely related to the relationship between the provisions between on the contractual liability and on the delictual responsibility.
In addition, the German Civil Code revised recently the provisions on the Culpa in Contrahendo, especially the abolition of the effect of initial impossibility and the implemention of pre-contractual liability, which accepts the results of European unification of private law.
When Korean legislators enacted the Civil Code, they expressly stipulates only initial impossibility(article 535 of the Korean Civil Code) with respect to the Culpa in Contrahendo. On the other hand, rescission on the Basis of Mistake was not adopted despite the discussions. After the enactment of the Civil Code, the German model was largely diffused in Korea, with the exception of some opposite opinions, which empahsized the presence of a broad principle of delictual responsibility within the Korean Civil Code(art. 750) with totally different with the German model. According to this opposite attitude, the negotiation period or the pre-contractual liability remains outside the boundary of contract law, the person suffering loss must turn to the article 750 of the Korean Civil Code dealing with the delict. Korea's decision takes this attitude consistently without exception.
Finally, the Korea Civil Code, trying to reflect the changes in today's rapidly changing social environment, was tried, with success in part, to amend twice in 2004 and in 2009-2014, respectively. In particular, with regard to culpa in contrahendo, deletion of the effect of initial impossibility (Article 535), amendment of damages by rescission on the basis of mistake, creation of pre-contractual liability or of the obligation to provide information in contract, are remarkable in the 2009-2014 revision.
Korea Civil law is moving in the direction, formerly from one-sided and full-scale reception of German civil law to pluralistic and in part and in particular, of the unification of private law in europe blending civil law and common law. In a sense, legal reception or legal unification on a global level is in progress constantly in Korea.

영어초록

This paper has been revised and supplemented on the basis of the presentation and its discussions in the 4th international Academic Conference on Civil Law of East Asia in Taiwan(2014.11.29.-11.30). This is a brief national report on the Culpa in Contrahendo in Korea, with the respect to reception of and independence from the European Civil law in East Asia. In this Conference have been followed some reports of other nations, including China, Japan and Taiwan.
The doctrine of Culpa in contrahendo (fault during contractual negotiations) which goes back to R. von Jhering in 1861. He advocated a contractual duty through the imposition of a tacit contract, in view of the limited range of delictual liability, which had been considered to have some defects. According to his thoughts, damages should be recoverable against the party whose blameworthy conduct during negotiations for a contract brought about its invalidity or prevented its perfections. Thereafter, the courts filled this gap of the German Civil Code with the development of culpa in contrahendo. The modernisation of the Law of Obligations of the Civil Code in 2001, this doctrine is provided for by statute. (art. 311, para. 2 in connection with art. 280 para. 1 and art. 241, para. 2 of the German Civil Code).
This topic has a more significant meaning than any other subjects with respect to the reception of the European Civil.
First, this conception being introduced from Germany to East Asia (Korea, Japan and Taiwan, except China, whose system mainly comes from CISG) but to a different degree affected in each state. It is also closely related to the relationship between the provisions between on the contractual liability and on the delictual responsibility.
In addition, the German Civil Code revised recently the provisions on the Culpa in Contrahendo, especially the abolition of the effect of initial impossibility and the implemention of pre-contractual liability, which accepts the results of European unification of private law.
When Korean legislators enacted the Civil Code, they expressly stipulates only initial impossibility(article 535 of the Korean Civil Code) with respect to the Culpa in Contrahendo. On the other hand, rescission on the Basis of Mistake was not adopted despite the discussions. After the enactment of the Civil Code, the German model was largely diffused in Korea, with the exception of some opposite opinions, which empahsized the presence of a broad principle of delictual responsibility within the Korean Civil Code(art. 750) with totally different with the German model. According to this opposite attitude, the negotiation period or the pre-contractual liability remains outside the boundary of contract law, the person suffering loss must turn to the article 750 of the Korean Civil Code dealing with the delict. Korea's decision takes this attitude consistently without exception.
Finally, the Korea Civil Code, trying to reflect the changes in today's rapidly changing social environment, was tried, with success in part, to amend twice in 2004 and in 2009-2014, respectively. In particular, with regard to culpa in contrahendo, deletion of the effect of initial impossibility (Article 535), amendment of damages by rescission on the basis of mistake, creation of pre-contractual liability or of the obligation to provide information in contract, are remarkable in the 2009-2014 revision.
Korea Civil law is moving in the direction, formerly from one-sided and full-scale reception of German civil law to pluralistic and in part and in particular, of the unification of private law in europe blending civil law and common law. In a sense, legal reception or legal unification on a global level is in progress constantly in Korea.

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