契約金契約에 관한 硏究

• 발행기관: 한국재산법학회
• 저자명: 최창렬
• 간행물 정보: 『재산법연구』재산법연구 제20권 제1호, 53~75쪽, 전체 23쪽
• 주제분류: 법학 > 법학
• 파일형태: PDF
• 발행일자: 2003.08.01

영문 초록

It is said that earnest money is cash or other object which is given to one party by another in entering a contract. The above earnest money contract is accessory to the main contract. Therefore if the main contract is made void or revoked then em contract is naturally become null. so the acceptor of em must give it back to the payer. This tract has observed the key issues which is under discussion among scholars First of all the bone of contention is whether em contract is real one. i. e. Is the main contract not yet entered if the em is not passed? Precedents and major scholars are in favor of above theory on the basis of two points. First point is historical one in other words from the roman law period em contract has been dealt as the real one. But even when the roman law presided. consent contract was deeply founded from 200 B. C. so em contract was not deemed as real one. Only greece which located eastern part of rome dealt em contract as real one. Through the trade between the two greek concept affect the roman law but generally em contract was not deemed as real one in roman law. Second point is statutory one i.e. Article 565 in our civil act postulates em must be given in entering a contract. Although the above article specifies em which is given in entering a contract is presumed revocation money, this article's real meaning is not em must be given in entering a contract. This is made clear considering that the above article 565 is a optional one which is applied only if there is not other agreement between parties. Therefore I see em contract is consent one. Further the justifiability of legislation in which em is presumed revocation money. The pros argue that in the course of dealing which is always entailing rapid changes which affect the dealing itself substantially, if the contract is entered at specific time there will be a dichotomy between benefit and damage, So any party can unshackle the binding of contract though the contract is already entered. In the final analysis the pros advocate the rationale of em should be sought the possibility of flee from the contract itself, And they also argue that from the enactment of our civil code the concept that em has the character of revocation money was prevalently permeated into our general citizens there is no need to gainsay that concept. But the role of contract is fixate the position of parties in regard of the fluctuating character of benefit and damage in each party. If the possibility of unshackling from the contract through revocation money is leniently accepted the contract itself is just an accord of tentative intent between parties. And finally the system of revocation money will make the binding force of contract weaken. This kind of thing is against the theory of pacta sunt servanda(A promise must be kept). Therefore i am all for the legislation method which like that of german civil law or swiss debt law only grants em the character of evidence of contract. Finally when the indemnity contract is entered is article 565 also applied? There is a yea argument but with all that there is a clear intent of indemnity between parties if article 565 is applied then this is against the clear intent of parties and also disregarding the article's optional character. Furthermore this kind of thing is not desirable in respect of enfeebling the binding force of contract. Therefore I think it desirable that in case of indemnity contract being entered the application of article 565 should be avoided.

목차

제1 서언

제2 계약금계약의 연혁 및 비교법

제3 계약금계약의 법적 성질

제4 계약금의 해약금추정

제5 해제권 행사의 방법 및 효과

제6 결어

ABSTRACT