契約責任法의 새로운 展開 - 유럽 契約法原則을 中心으로 -

• 영문명: New Trends in the European Contract Law: Focusing on the Principles of European Contract Law
• 발행기관: 한국재산법학회
• 저자명: 정종휴(Jeong Jong-Hyu)
• 간행물 정보: 『재산법연구』재산법연구 제22권 제1호, 89~136쪽, 전체 48쪽
• 주제분류: 법학 > 법학
• 파일형태: PDF
• 발행일자: 2005.06.01

영문 초록

(1) Era of New Codification The modern era is characterized by phenomenal social and economic changes, such as the advent of the Internet, ever-developing science and technology, increasing number of travelers crossing borders, abundant transactions of goods and services, new philosophies and ethical views, better and faster transportation, and more protection of creativity. Civil laws governing transactions, in particular, have undergone reorganization and integration at the global level. I'd like to refer to these phenomena as features defining "the Era of New Codification." (2) Advent of "Soft Law" and European Contract Law Principles One of the key features of the Era of New Codification is the so-called soft laws, or the legal principles or drafts that have no target countries to apply them to, which are published largely due to the efforts of legal experts in many countries. The emerging soft laws are distinctive particularly in the fields of contract law, of which recent examples include Unidroit Principles of International Commercial Contracts (PICC), Principles of European Contract Law (PECL), and Avant-project. This paper aims at identifying new trends of the rules on breach of contract and contract remedies by examining the PECL, published in three steps from 1982 to 2001 by the Commission on European Contract Law. (3) Analysis of the PECL For a better understanding of the main context, the relations between the PECL and other soft laws like the CISG, PICC, and Avant-project are provided along with the formation process, construction, and drawbacks of the PECL. The PECL is analyzed in the following order: a. Non-performance oriented system b. Liability for negotiations c. Change in circumstances / assurance of performance d. Remedies e. Right to specific performance f. Right to damages g. Right to terminate contract h. Right to price reductions Based on this examination, implications for the revision or development of the Korean contract law are provided as follows: a. Abolition of so-called original impossibility b. Presumed validness of contract and duty to mutual cooperation c. Remedies approach d. Remedies - effect of non-performance e. Strengthening of pre-contract stage f. Endangerment of Contract (4) Implications of the PECL The PECL contains a large part of the common core of continental law and common law. Aside from the basic factors of a contract, wide variations of a similar regime or concept are shown in the PECL. This is similar to the fate of Roman law that, after having gone through revisions in schools in the Middle Ages, was adopted in each country, analyzed in academic fields, and taught in law classes. The PECL might be roughly called ius commune of European Contract Law in the 21st century. Scholars in each European country have drafted this soft law, considering all changes in transactional environment such as the development of science and changes of philosophies regarding national and international trade. In this light, the PECL shows us the possibility of and the need for one unified global contract law beyond the current European common law. Many Asian countries such as South Korea, China, and Japan have been under the influence of the two representative continental laws: French and German law. At a time when a unified Northeast Asian contract law is desperately needed, the PECL is regarded as a good benchmarking source for new ideas and foundations of a new common law.

목차

Ⅰ. 머리말 - 新法典編纂時代와 "소프트 로"의 등장

Ⅱ. 유럽契約法原則의 성립과 특징

Ⅲ. PECL의 契約責任ㆍ履行障碍法 분석

Ⅳ. 契約責任ㆍ履行障碍論의 再構成을 위한 시사점

Ⅴ. 맺음말

Abstract