계약교섭결렬책임에 관한 영미법상의 논의

• 영문명: Precontractual Liability in Anglo-American Law
• 발행기관: 한국민사법학회
• 저자명: 이혜리(Lee, Hyeri)
• 간행물 정보: 『민사법학』제61호, 201~246쪽, 전체 46쪽
• 주제분류: 사회과학 > 사회과학일반
• 파일형태: PDF
• 발행일자: 2012.12.31

영문 초록

Recently, the process of entering a contract has become very complicated and time-consuming. During the negotiation, a party in negotiation might invest money because he reasonably believed that the contract would be completed in the future. It is unfair if the party who caused the failure of the negotiation doesn t bear any liability after the negotiation has advanced so far that the other party can legitimately rely on the conclusion of the contract in question. Concerned by this problem, Supreme Court of Korea held, “if one party of a negotiation induced the other party to legitimately expect or rely that the contract being negotiated will surely be concluded, caused him to act on that reliance, and then he refused to conclude the contract without due cause incurring the other party s loss, the conduct of one party constitutes a tort as a misconduct beyond freedom of contract in consideration of good faith principle,” and the damages where general causal relationship can be established is “limited to the reliance damages, which is the loss resulting from the reliance of the contract being effectively concluded.” The decision, which captures the essentials of precontractual liability, leaves many difficult problems to be solved such as the legal character of precontractual liability, the types of precontractual liability, the details and the standard of the judgement for the legal requirements, and the legal effect of such liability. In order to solve the above problem, this paper reviewed the theories and cases in the U.S. and English law. The Laws of the U.S. and England have presented the following three important issues. Firstly, the U.S. court applies many different legal theories such as promissory estoppel, preliminary agreement, misrepresentation, and unjust enrichment. Therefore, it shows that the legal character of precontractual liability cannot be defined a priori and it could differ over legal systems. Secondly, case law in the U.S. and England provides the detailed elements for admitting the precontractual liability. Finally, the courts in the U.S. and England generally allows the reliance damage as a compensation for precontractual liability.

목차

Ⅰ. 서론

Ⅱ. 청약의 구속력

Ⅲ. 약속적 금반언(promissory estoppel)

Ⅳ. 예비적 합의(preliminary agreement)에 기한 신의성실에 따라 교섭할 의무

Ⅴ. 부실표시(misrepresentation)

Ⅵ. 부당이득

Ⅶ. 한국법에 대한 시사점

Ⅷ. 결론

참고문헌

키워드

계약교섭결렬 신의성실에 따라 교섭할 의무 신뢰이익 약속적 금반언 예비적 합의 부실표시 부당이득 precontractual liability duty to negotiate in good faith reliance damage promissory estoppel preliminary agreement misrepresentation unjust enrichment