미국계약법의 구조와 이해

• 영문명: The Structure of American Contract Law and its Understanding
• 발행기관: 한국재산법학회
• 저자명: 가정준(Ka Jung-joon)
• 간행물 정보: 『재산법연구』財産法硏究 第23卷 第3號, 23~46쪽, 전체 24쪽
• 주제분류: 법학 > 법학
• 파일형태: PDF
• 발행일자: 2007.02.28

영문 초록

  It is not easy to explain the structure of American Contract Law because of different legal worlds. First, the structures of contract law between in common law and civil law are different to each other. Second, historical and theoretical backgrounds for contract laws between in common law and civil law are not the same to each other. Legal scholars between in two different worlds may have made little effort to understand the other world. However, since 1980s, the whole world has begun to unify the law for sale of goods. Its purpose initiated to reduce the transaction costs. The result became into existence as "United Nations Convention on Contract for the International Sale of Goods"(hereafter "CISG"). Korea also participated in this movement in 2005 by approving this treaty in National Assembly. In fact, "CISC" is a result of harmonization between common law and civil law. Therefore, the demand for understanding common law has increased. That is the main reason why I introduced this paper to this Law Review.
  In common law, the most important and unique concept may be "Consideration." The doctrine of consideration may represent the history of contract law in common law. It has originated from "causa" under Roman law. However, it has differently developed to distinguish enforceable promise from unenforceable promises. The independent development for the doctrine of consideration in the United States stimulated the separation from English contract law. The structure of common law for contracts has developed based on litigation rather than substantial law. This structure has mainly focused on the concept to distinguish enforceable contract from unenforceable contract. The concept of "defense" has been used to do this purpose.
  Many kinds of defenses have played a decisive role for defendants to claim that the contract cannot be enforceable in action. They do make contracts unenforceable rather than void. On the other hand, three discharges - impracticability, impossibility, and frustration - render to relieve defendants from their contract duty without the liability from breach of contract. They do not make contract unenforceable, but both party no liable.
  In addition, this paper has examined how plaintiff can be compensated from the breach of contract in action. Mainly, plaintiff can seek for specific performance or damage award. In damage awards, first, in Korea, plaintiff can be compensated based on the evaluation by the expectation damage in the United States. Second, unlike in Korea, the damage can be evaluated with the reliance damage if some other conditions are satisfied in the United States. The reliance damage has played a supplementary role to solve problems from the doctrine of Consideration.
  In conclusion, this paper is not possible to wholly explain the structure of American contract law. Since many scholars has been interested in common law, I hope that this paper helps them to understand the background of American contract law rather than detail contract law.

목차

Ⅰ. 서론
Ⅱ. 미국 계약법 이해를 위한 배경
Ⅲ. 미국 계약법의 내용
Ⅳ. 결론
참고 문헌
〈Abstract〉

키워드

의사주의 고전주의 강제할 수 있는 약속 강제할 수 없는 약속 강제할 수 있는 계약 강제할 수 없는 계약 대가성 계약이행 항변사유 Classic Contract Theory Restatement consideration defenses discharges expectation damage reliance damage promissory estoppel