금융리스에서 리스물의 하자담보책임

• 영문명: The Warranty Liability in Financial Leasing
• 발행기관: 전남대학교 법학연구소
• 저자명: 김재국(Kim, Jae-Guck)
• 간행물 정보: 『법학논총』제27권 제1호, 109~134쪽, 전체 26쪽
• 주제분류: 법학 > 법학
• 파일형태: PDF
• 발행일자: 2007.06.30

영문 초록

A seller should transfer a flawless thing to a purchaser. If there is some defect in it, the purchaser can nullify the contract and claim damages, or can demand another flawless thing. The warranty responsibility like this should be applied to not only selling contracts but other onerous contracts. Financial leasing is also a kind of onerous contracts. So, without any special agreement, a lessor takes the warranty responsibility for leasing objects. Nevertheless, generally in leasing contract, there is a special condition clause of discharging a lessor from his warranty liability. Lawyers acknowledge that this special clause is valid, for the reason that the lessee’s position is similar to that of the parties to sale in the aspect of choosing the leasing object and the supplier by himself, and for the reason that financial leasing takes the substance of loan. On the other side, the lessee can charge the supplier with warranty responsibility. In practice, the lessor assigns his claim of damages for warranty to the lessee in lease contract. In this case, however, the lessee’s interest is not secured sufficiently because the lessee’s damage by flawless thing is not the same as the lessor’s. Therefore, I assert that financing lease should be understood as the three parties-transaction and its triangular relationship should be studied organically. Then the relationship between lessee and supplier can be grasped as the parties to sale in substance, and naturally the lessee can claim damages for warranty to the supplier without regard to the nonexistence of the special clause of discharging the lessor from warranty liability in leasing contract.

목차

Ⅰ. 서

Ⅱ. 금융리스의 의의와 법적 성질

Ⅲ. 리스물건의 하자담보책임

Ⅳ. 결

키워드

하자없는 물건 하자담보책임 하자담보 면책특약 금융으로서의 실체 하자로 인한 손해배상청구권의 양도 3당사자 거래 3면관계 실질적 매매당사자 the flawless things warranty responsibility a special condition clause of warranty exclusion the substance of loan assignment claim of damages for warranty three parties transaction triangular relationship the parties to sale in substance