청약의 구속력과 계약자유

• 영문명: Irrevocable Offers and Freedom of Contract
• 발행기관: 한국사법학회(구 한국비교사법학회)
• 저자명: 김기창(Kee-Chang Kim)
• 간행물 정보: 『비교사법』비교사법 제12권 1호, 87~110쪽, 전체 24쪽
• 주제분류: 법학 > 법학
• 파일형태: PDF
• 발행일자: 2005.03.01

영문 초록

Article 527 of Korean Civil Code provides that an offer to enter into a contract shall not be revocable. While the provision might appear to suggest that all offers are firm offers (irrevocable offers) under the Korean law, the court has in many cases considerably watered down the apparent rigour of the provision by characterising a party's proposal as merely an invitation to treat rather than an offer. If, however, the court does find that an offer was made, Article 527 allows the court to provide contractual remedies even when it is clear that the parties failed to agree because the offer had been retracted before it was accepted. Article 527, therefore, makes it necessary to re-examine the theory of contract formation which relies on a model of offer and acceptance. The paper introduces a brief overview of discussions among British and American scholars about theoretical foundations of contractual remedies. The author suggests, in particular, that Professor P S Atiyah's thesis provides a valuable insight into an understanding of contract formation and the court's choice between contractual remedies and tort remedies. The paper seeks to contribute to this debate by pointing out that Article 527 shows that contract formation does not necessarily require a meeting of mind. The ground for allowing contractual remedies under Article 527 in the absence of the parties' agreement must be sought in the breach of the basic relationship of mutual trust and reasonable reliance which precedes any actual agreement between the parties. An actual agreement will no doubt engender a relationship of trust and reliance between the parties to the agreement. And contract law must no doubt endeavour to ensure that such a relationship is not breached. But a relationship of trust and reasonable reliance can already exist even before any agreement can actually be made. Such a relationship is probably no less worthy of effective legal protection.

목차

Ⅰ. 서론

Ⅱ. 우리 법원의 입장

Ⅲ. 미국법에서의 청약의 구속력

Ⅳ. 계약상 구제수단의 근거

Ⅴ. 채무법상 구제수단의 분류/통합

Ⅵ. 맺는말

참고문헌

Abstract