프랑스에서의 건축수급인 등의 하자담보책임법의 변천

• 영문명: Developments of Liability Regime for Construction Defects in France
• 발행기관: 한국사법학회(구 한국비교사법학회)
• 저자명: 이준형(Joon-Hyong Lee)
• 간행물 정보: 『비교사법』비교사법 제12권 3호, 45~92쪽, 전체 48쪽
• 주제분류: 법학 > 법학
• 파일형태: PDF
• 발행일자: 2005.09.01

영문 초록

Before the Napoleon Code was enacted, the medieval Roman law(“common law”) had ruled all through France from the Mediterranean Sea to Normandy, because there could be found no customary law in the field of the construction contract, but which was not recognized as an independent type under the “common law” system, only to bundle it with other contracts such as employment or lease. Most of it remained unchanged in spite of revolutionary codification by Napoleon in 1804. The 1804 regime of liability for construction defects was characterized by its dualistic system, comprising of general fault liability as one side and special strict liability for construction defects as the other(arts. 1792, 2270). The first overwhelming theory, so-called mixed theory, underlined that the latter be so exceptional lex specialis as to be restricted with narrow limits. Such a defensive attitude proved to be insufficient as social circumstances changed; above all architects began to play a different role, that was, they made a plan but assumed no more construction activities. After the Teillaud case(Cass. Civ. April 5 1965), in which the French Supreme Court(Cour de Cassation) denied the application to architects of arts. 1792, 2270, it became obvious that an institutional reform was inevitable. Hence, the 1967 reform abolishing all the limitations as well as enlarging the scope of strict liability application. However, they failed to remove all the practical insufficiencies, as the first of which they saw that victims of construction defects suffered from a de facto lack of remedies, especially for irrationally prolonged legal actions, which would sometimes reach even a few decades. Six years hadn't passed until the French government called in experts to set up an inter-ministerial commission in charge for preparatory work of the coming reform. This commission, named after its presider Adrien Spietta, brought forth a final report, that later served as the blueprint of the 1978 reform, characterized by the introduction of construction insurances. The reform was fundamental in that the scheme totally went through revision and addition in form and content. Owners and constructors(including architects) became to be forced to take out an insurance policy respectively. In the field of Civil Code, existing concepts such as “reception” was explained and refined; new institutions like “achievement guaranty” was introduced and established. Generally speaking, the Korean law of construction contract could be traced back to the German model. But it is not quite impossible to find out some evidences of the French influence in the the Korean Civil Code(for example, arts. 670, 671). Thus an detailed study of French construction contract law will be eagerly expected.

목차

Ⅰ. 출발점 - 보통법의 지배

Ⅱ. 1804년 민법전의 제정

Ⅲ. 1967년의 민법 개정

Ⅳ. 1978년의 민법 개정

Ⅴ. 우리 법에 대한 시사

[참고문헌]

【ABSTRACT】