채무불이행으로 인한 신뢰이익의 손해배상과 범위

• 영문명: Damages for Reliance Loss and the Limits of Damages in Breach of Contract
• 발행기관: 한국민사법학회
• 저자명: 김영두(Kim, Young-Doo)
• 간행물 정보: 『민사법학』제42호, 237~284쪽, 전체 48쪽
• 주제분류: 사회과학 > 사회과학일반
• 파일형태: PDF
• 발행일자: 2008.09.30

영문 초록

In case of termination or invalidity of contract, the aggrieved party in contract can claim damages for reliance loss, which are to put the aggrieved party into the situation in which it would have been if the contract had never made. Usually reliance loss may be expenses or other losses incurred in reliance on the contract. In Korea, it is the prevalent view that damages for reliance loss would be awarded only when the contract is invalid or nullified. When a party doesn t perform the obligation of the contract although it is effective, damages for expectation loss is thought to be enough to protect the interest of the aggrieved party. However in anglo-american contract law, damages for reliance loss would usually be awarded in case of breach of contract. The damages for reliance loss, which arise in the case of invalidity or nullification of contract, is rather exceptional. Unlike the prevalent view as to the reliance loss, the precedents of Supreme Court of Korea allow the aggrieved party damages for reliance loss in breach of contract. It is necessary and reasonable to allow the aggrieved party the damages for reliance loss even in breach of contract. The first reason is that the aggrieved party should be given the chance to choose in which situation it want to be put. In breach of contract, the aggrieved party may be willing to be put into the situation in which it would have been if the contract had been duly performed. However it may wish to be put into the situation in which it would have been if the contract had never been made with the damages for reliance loss. The aggrieved party should be allowed to choose between claiming damages for expectation loss and reliance loss. The second reason is that the aggrieved party is not fully protected with the award of damages of expectation loss, when the expectation loss cannot be estimated or established. In these cases, damages for reliance loss is the only remedy entitled to the aggrieved party. When the aggrieved party should be entitled to be awarded the damages of reliance loss, the relevant article would be Art. 390 Korean Civil Law. Therefore for the damages of reliance loss, the conditions of Art. 390 should be met. Besides, the aggrieved party claiming damages on a reliance basis should not be put into a better position than the position in which it would have been if the contract had been performed. In other words, the damages for reliance loss should be limited by expectation loss. The loss suffered by the aggrieved party in excess of its expectation is suffered, not because the contract was broken, but because the contract was a bad bargain for him or the reliance loss in excess of expectation was caused not by the breach of contract but by the its wasteful habits. However, the damages for reliance loss in excess of expectation loss could be awarded when they do not give the aggrieved party undue profit.

목차

[대상판결 : 대법원 2006. 2. 10. 선고 2003다15501 판결]

Ⅰ. 사건의 경과

Ⅱ. 대상판결의 검토

참고문헌

키워드

신뢰이익 신뢰손해 이행이익 손해배상 채무불이행 소극적 손해 적극적 손해 비용배상청구권 중복배상금지 damage reliance loss expectation interest reliance interest breach of contract negative damage positive damage