미국법이 민법에 미치는 영향 분석 (The Analysis for the Influence of American Law on Korean Civil Code)

서지정보

· 발행기관 : 한국민사법학회
· 수록지 정보 : 민사법학 / 52권 / 219 ~ 243페이지
· 저자명 : 가정준

초록

Korean Civil Code is known to mainly accept the legal principles of continental countries such as German, Swiss, and France. During the 20th century, it is the most likely that the legal system and theories from Germany and Japan have had effect on the enactment, amendment, and development of Korean Civil Code. It does not mean that Korean Civil Code has mainly originated from two particular countries.However, It is hardly to deny that legal system and theories from Germany and Japan have been noticeable in the interpretation and development of Korean Civil Code.
During the 21th century, I do not believe that the influence of these two countries will keep playing a dominant role in Korean Civil Code. We should keep in mind that American Law is more likely to influence Korean Civil Code than ever although it is unlikely to become a dominant role to play in a general level. In specific areas, American law will provide serious impact for Korean cases and legal reasoning.
American law including common law has not been influential in the enactment and amendment of Korean Civil Code. Only two legal principles of common law were found in Korean Civil Code since the enforcement of Korean Civil Code in 1960. They are called “ultra vires doctrine” and the scope of damage based on Hadley v. Baxendale. They are regulated in article 34 and 393, respectively. The influence of American law has eventually grown in the doctrine of Good Faith,Illegality, Unfair Transaction, Negligence of Tort Liability, Right of Privacy, and Defamation.
Conceptually, the doctrine of Good Faith in common law is quite different from one in Korea. In Korea, the doctrine of good faith consists of several derivatives such as Frustration of Purpose, Promissory Estoppel, and Laches. In common law,the doctrine of good faith is parrel to these derivatives originated from equitable courts. The historial background and the large number of cases from these equitable remedies will influence Korean Civil Code how to interpretate such cases in Korea.
With regard to Illegality in common law, Korean civil code should consider how the doctrines of ‘pari delicto’와 ‘locus poenitentiae’ possibly are matched for Korean cases. The unconscionablity in common law is closely related to unfair transactions.
Its concept has developed and realized into special statutes whose purpose to protect consumers in the U.S.
The tort liability in the U.S. is most likely to affect__ne in Korea. American tort liability has focused on the preventative function of tort law and the externalities as market failure. Rather Korean tort liability has focused on how to make compensation for victims. In this sense, Korean legal scholars should learn how tort law ought to be in playing a preventative role and how tort law is connected with market function.
Finally, liability for nuisance, trust law, and unjust enrichment in American law are also most likely to influence Korean Civil Code because they have already produced the large number of cases and concrete legal principles. Especially,Korean trust law adopted he trust law of common law. However, trust law in Korea has been rarely used despite the increasing demands from market. Therefore,American trust law is likely to have effect on Korean one.
I have tried to show the influence of American law on Korean Civil Code. In past time, its influence is too weak to be explained. Since the 1980s, its influence has remarkably grown up because of global trend for unification of contract law and strong impact of American law as the most important leader of world economy.
I have mentioned which fields American law is most likely to influence Korean Civil Code. The reasonableness of American law based on economic analysis has meaningful effect on not only Korean Civil Code but also Civil Codes of other countries.

영어초록

Korean Civil Code is known to mainly accept the legal principles of continental countries such as German, Swiss, and France. During the 20th century, it is the most likely that the legal system and theories from Germany and Japan have had effect on the enactment, amendment, and development of Korean Civil Code. It does not mean that Korean Civil Code has mainly originated from two particular countries.However, It is hardly to deny that legal system and theories from Germany and Japan have been noticeable in the interpretation and development of Korean Civil Code.
During the 21th century, I do not believe that the influence of these two countries will keep playing a dominant role in Korean Civil Code. We should keep in mind that American Law is more likely to influence Korean Civil Code than ever although it is unlikely to become a dominant role to play in a general level. In specific areas, American law will provide serious impact for Korean cases and legal reasoning.
American law including common law has not been influential in the enactment and amendment of Korean Civil Code. Only two legal principles of common law were found in Korean Civil Code since the enforcement of Korean Civil Code in 1960. They are called “ultra vires doctrine” and the scope of damage based on Hadley v. Baxendale. They are regulated in article 34 and 393, respectively. The influence of American law has eventually grown in the doctrine of Good Faith,Illegality, Unfair Transaction, Negligence of Tort Liability, Right of Privacy, and Defamation.
Conceptually, the doctrine of Good Faith in common law is quite different from one in Korea. In Korea, the doctrine of good faith consists of several derivatives such as Frustration of Purpose, Promissory Estoppel, and Laches. In common law,the doctrine of good faith is parrel to these derivatives originated from equitable courts. The historial background and the large number of cases from these equitable remedies will influence Korean Civil Code how to interpretate such cases in Korea.
With regard to Illegality in common law, Korean civil code should consider how the doctrines of ‘pari delicto’와 ‘locus poenitentiae’ possibly are matched for Korean cases. The unconscionablity in common law is closely related to unfair transactions.
Its concept has developed and realized into special statutes whose purpose to protect consumers in the U.S.
The tort liability in the U.S. is most likely to affect__ne in Korea. American tort liability has focused on the preventative function of tort law and the externalities as market failure. Rather Korean tort liability has focused on how to make compensation for victims. In this sense, Korean legal scholars should learn how tort law ought to be in playing a preventative role and how tort law is connected with market function.
Finally, liability for nuisance, trust law, and unjust enrichment in American law are also most likely to influence Korean Civil Code because they have already produced the large number of cases and concrete legal principles. Especially,Korean trust law adopted he trust law of common law. However, trust law in Korea has been rarely used despite the increasing demands from market. Therefore,American trust law is likely to have effect on Korean one.
I have tried to show the influence of American law on Korean Civil Code. In past time, its influence is too weak to be explained. Since the 1980s, its influence has remarkably grown up because of global trend for unification of contract law and strong impact of American law as the most important leader of world economy.
I have mentioned which fields American law is most likely to influence Korean Civil Code. The reasonableness of American law based on economic analysis has meaningful effect on not only Korean Civil Code but also Civil Codes of other countries.

참고자료

· 없음