債務不履行規範의 一元化를 위한 基礎 - 歷史의 桎梏을 넘어 私法의 世界化 경향과 조화할 것을 제안하며

• 영문명: First Step for Unification of Laws Relating to Breach of Contract
• 발행기관: 한국사법학회(구 한국비교사법학회)
• 저자명: 명순구(Soon-Koo Myoung)
• 간행물 정보: 『비교사법』比較私法 제13권 제4호, 305~335쪽, 전체 31쪽
• 주제분류: 법학 > 법학
• 파일형태: PDF
• 발행일자: 2006.12.01

영문 초록

  Does the present Korean law of non-fulfillment of obligation retain any easiness? The discussion concerning this matter is very wide-ranged and complex. This thesis, however, is mainly focused on whether it is proper to maintain the dual system of the general law for the non-fulfillment of obligation and the seller"s liability for warranty. To rearrange the interrelations of these two would be the prior consideration for the modernization of law of non-fulfillment of obligation. It would not be possible to expect desirable developments of this field of law unless the problem is clarified. Korea is a country that has high dependence on overseas trade, and it would be an advantageous choice to follow the worldwide trend and unify the laws of non-fulfillment of obligation.
  The purpose of this thesis is to prepare the groundwork for unifying the law of non-fulfillment of obligation. To achieve this, Korean civil law Art. 390(damages for breach of contract) and Art. 580(seller"s liability for warranty against defect) are analyzed in depths. The common problems raised when interpreting these two articles are due to the uncritical adoption of German and Japanese civil law studies. Not only does the traditional interpretation of these two articles not accord with the system of Korean civil code, but also it is against the globalizing trend of private law.
  There are two characteristics found in the history of formation of Korean civil code; indirect adoption and mixed adoption of foreign laws. These characteristics have positive effects on the Korean civil law studies, which are open attitude towards foreign law and curtailed expenses in the administration of legal system. However, we cannot neglect the negative effects, such as the aim-blindness (tendency to accept foreign doctrines without any filtering) and fallacy (tendency to theorize without considering the historical backgrounds and legal structure) occasionally found in the process of adopting studies of foreign civil laws to Korean legal system. Aim-blindness is the negative effect of the indirect adoption, and fallacy is of the mixed adoption.

목차

Ⅰ. 序論: 논의의 한정
Ⅱ. 債務不履行으로 인한 損害賠償의 분야
Ⅲ. 瑕疵擔保責任의 분야
Ⅳ. 結論
【참고문헌】
【Abstract】

키워드

사법의 세계화 계약위반 채무불이행 손해배상 하자담보책임 법정책임설 Globalisation of private law Breach of contract Damages Seller’s liability for latent defect Gew？hrleistungstheorie