契約關係에서의 背信的 行爲-信賴破壞

• 영문명: A violation of reliance by a contracting party
• 발행기관: 한국민사법학회
• 저자명: 張在賢(Chang, Jae-Hyoun)
• 간행물 정보: 『민사법학』제33호, 193~226쪽, 전체 34쪽
• 주제분류: 사회과학 > 사회과학일반
• 파일형태: PDF
• 발행일자: 2006.09.30

영문 초록

When lessee alienates his lease without consent of lessor to third party, lessor can rescind the lease contract in § 629 of korean civil act(KCA). About interpretation of this article the japanese supreme court judges the right of lessor s rescission could not be recurred subjected non a special things of violating of mutual reliance since the world war two. Since the case the so called principle of reliance-violation is established in court. In korea also since 1990s the supreme court applies the principle in an assignment of lease. And the korean supreme court judged by the principle a case of employment contract, mandate contract and partnership contract which are based mutual reliance. So in this paper after examination of the above case of korean and japanese supreme court thoroughly, I would settle the principle of reliance violation in contracts based mutual reliance. With the first problem is the exact means of mutual reliance. The question is the reliance means only real(saechlich) reliance except personal(persoenlich) reliance or the two elements be included in. In principle the reliance means real reliance, but in occasion it involves personal reliance depending mutual contract. Nowadays lease is important for lessor a rental not lessee s mental personality. But a mental personality of contracting party is very important in mandate, employment and especially partnership contract. In short the exact means of reliance is different according to the contract. In assignment without consent lessor can cancel according to § 629 on a reliance violating act of lessee only. But in allowance to third without consent in loan for use lender can rescind according to § 610 of KCA without any restriction. According to § 657 of KCA it is prohibited to assign employer′s right to third without consent of employee. But the prohibition of § 657 would be limited by the principle of violation of reliance. In a special term of renouncement of rescission of mandate the special term is effective but one can rescind the contract in subject of violation of reliance. When one partner violates mutual reliance in partnership contract, the expulsion of the man may be made with the unanimous consent of the other parties, and could demand to dissolve a partnership to unavoidable cause. A violating reliance comes under the unavoidable cause in § 620 and the reasonable cause in § 718.

목차

Ⅰ. 序言

Ⅱ. 背信行爲에 대한 法的 評價

Ⅲ. 信賴關係에서 背信의 意味

Ⅳ. 背信行爲論의 定立-私見

키워드

배신행위 신뢰파괴 임차권양도 무단양도 무단전적 해지권포기 특약 조합 reliance violation violation of reliance rescission assignment without consent lease loan for use partnership