계약교섭결렬책임에 관한 영미법상의 논의

이혜리 한국민사법학회 2012 民事法學 Vol.61 No.-

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.

영미법상 Pre-contractual Liability에 의한 손해배상에 관한 연구

양채홍,김종락 한국경영법률학회 2010 經營法律 Vol.20 No.4

A freedom of negotiation has traditionally been a cornerstone of contract law in common-law countries including the United States. Absent entering into an actual agreement, parties are free to negotiate, and to back out, without any risk of liability. This traditional common-law view of Pre-contractual Liability is sometimes referred to as the "aleatory view" of negotiations. According to this view, no protection against damages resulting from broken-off negotiations is afforded to a party who has entered into negotiations with the hope of achieving the potential gain that would result from ultimate agreement. Therefore, under the traditional view, a party to negotiations who suffers a loss due to improper behavior of the other party has no remedy if a contract was never actually agreed upon. Although the UCC and the Restatement(Second) of Contracts both impose a duty of good faith and fair dealing on parties to a contract, there is no similar duty on parties to mere negotiations. Although Pre-contractual Liability still does not arise based upon a general obligation or duty of good faith during negotiations, the U.S. courts have imposed liability under three primary theories. The first theory is Restitution, which involves the unjust enrichment of one party during the negotiation stage. The second is misrepresentation, which involves misinformation given during negotiations concerning an intention to come to terms. promissory estoppel is the third one, upon which Pre-contractual Liability may be imposed and involves a promise made by one party, and relied upon to the detriment of the other, in order to induce the latter to negotiate. Common-law courts, in imposing Pre-contractual Liability in these situations, restrict the measure of recovery to either the Restitution interest, which returns to the injured party whatever benefit the other party unjustly received, or the Reliance Interest, which puts the injured party back in the position it would have been in if he or she had not relied upon the promise or misrepresentation. The Expectation Interest is understandably not used because it is reserved for parties who have actually reached an agreement. In addition, the U.S. courts also have drawn up a series of preliminary agreements in anticipation of reaching final agreement on all points. For example, a court will find that preliminary agreements are binding upon the parties when they have either reached complete agreement on all issues that require negotiation, or have expressed mutual commitment to the major terms of the agreement, even if other terms still are not agreed upon. In the former case, the court will treat the preliminary agreements as a binding contract and injured parties will be entitled not only to their Reliance Interest, but also to their Expectation Interest and specific performance. In the latter case, the court will not treat the provisions as a completed contract, but may impose a duty of good faith upon the parties to conclude negotiations.

소급적 환경책임의 위헌성- 2010헌가77 토양환경보전법 제10조의3 제1항 등 위헌제청사건을 글감으로 하여

조홍식 사법발전재단 2013 사법 Vol.1 No.26

Soil Environment Conservation Act provides the “strict liability” for damages caused by soil contamination. The strict liability was enacted to solve a serious problem of “soil contamination” in particular. For that reason, potentially responsible parties deem the Act to have limited individual rights excessively. In this article, the author challenges its constitutionality by focusing on its over-regulatory aspect. By so doing, this paper aims to make a contribution to seek an optimal point in the legal policy-making concerning soil environment conservation. It is legally possible for the Legislature to enact a retroactive legislation particularly for environmental protection. However, it must comply with constitutional constraints. When a legislation imposes excessive retroactive liability on a limited scope of people, when it is unreasonable for them to expect themselves to be retroactively liable, and when the degree of liability is, viewed in light of their life experiences, extremely unproportional to their past acts, such legislation as imposes excessive retrospective liability must violate the Constitution. In order to survive constitutional review, the Legislature must move away from comprehensive or one-size-fit-all type of legislation. Instead, the Legislature should enact more elaborate legislations through fine-tuning on such issues as the scope and degree of retroactive liability. Even if it is enacted under the rubric of public interest, a legislation, if not with such elaborate fine-tuning, is no more than an excuse for arbitrary exercise of power. Ch. I sketches the facts necessary for discussion, and introduces the relevant provisions whose constitutionality is challenged. Ch. II summarizes the constitutional issues posed by the relevant provisions. They concern the restrictions imposed on the parties’ property right and reliance interest. From III to IX, the author reviews the following constitutional issues: whether the relevant provisions infringe the essential aspect of property right(III.); whether they violate the ex post facto clause(IV.), the principle of proportionality(V.), the principle of self-responsibility(VI.), and the non-delegation principle(VIII.); and whether it is a taking without just compensation(VII.). Finally, ch. IX. deals with the constitutional issues from a perspective of constitutional policy. 토양환경보전법상의 오염토양정화책임은 토양오염이란 심각한 문제를 해결하기 위하여 입법되었던 까닭에, 책임 부담자 입장에서 보면 개인의 권리를 지나치게 제한하는 측면이 작지 않았다. 이 글은 토양환경보전법의 과잉규제적 측면에 착목하여 그 위헌성 여부를 탐색함으로써 토양환경보전의 법정책에서의 최적 균형점을 찾는 데 기여하고자 한다. 환경보호를 위해 소급입법이 가능하지만, 그럼에도 불구하고 헌법이 정한 한계는 이를 준수하여야 한다. 법률이 한정된 범위의 사람들에게 과도한 소급책임을 부여할 때, 그들이 그런 책임이 사후에 주어지리라 예상할 것을 기대하는 것이 합리적이지 못할 때, 그리고 그들의 살아온 경험에 비추어볼 때 그 책임의 정도가 심하게 반(反)비례적일 때, 그런 과도한 소급책임을 부여하는 법률은 우리 헌법을 위반하고 있는 것이다. 의회가 이런 부정적 평가에서 벗어나기 위해서는 위와 같은 위헌의 소지를 남기지 않도록 일률적이고 망라적인 법률이 아니라 소급되는 책임의 정도와 적용대상에 대한 미세조정을 통하여 법률의 내용을 정치(精緻)하게 만들어야 할 것이다. 이런 미세조정이 부대하지 않은 법률은 그것이 아무리 공익으로 치장한다고 하여도 권력의 자의적 행사를 위한 빌미가 될 뿐이다. I.에서는 논의를 전개하기 위하여 필요한 사실관계와 위헌 여부가 다투어진 대상조항의 내용을 소개하고, II.에서는 대상조항이 야기하는 헌법적 논점, 즉, 대상조항이 이해관계인의 재산권 및 신뢰이익에 가하고 있는 제한과 관련한 헌법적 논점을 정리한다. III.에서 IX.에서는 각 헌법적 쟁점, 즉, 대상조항이 재산권의 본질적 내용을 침해하는지(III.), 소급입법금지 원칙(IV.), 비례의 원칙(V.), 자기책임원칙(VI.)에 반하는지, 정당한 보상 없는 수용(VII.)에 해당하는지, 법률유보원칙에 반하는지(VIII.) 등을 살펴보고 마지막으로 IX.에서는 헌법적 논점에 대한 헌법정책적 평가를 시도한다.

특정물 하자담보책임으로서의 손해배상 - 대법원 2021. 4. 8. 선고 2017다202050 판결

고유강 한국민사법학회 2022 民事法學 Vol.101 No.-

The judgment is a case in which a plot of land was sold with an immense amount of waste being buried underneath. Neither the seller nor the buyer was aware of the buried waste at the conclusion of the contract. Details surrounding the burial remained unknown and unexplained, as no supporting evidence was further provided. After the waste had been discovered by the buyer, the buyer sought compensation for damages on the grounds of warranty liability, which gives remedies to a buyer who purchased a defective product. The Korean Supreme Court acknowledged damages exceeding the sale price. It is reasonable to understand that the nature of warranty liability regarding specific goods is a contractual liability due to the non-conformity of the goods. However, the interpretation of individual clauses regulating the warranty liability system cannot be plainly deducted from that nature. Rather, each clause should be construed in the light of the purpose of law, which is to maintain an equivalence between the exchanged values in a bilateral contract. There has been a plethora of conflicting opinions on how to define the scope of damages in terms of warranty liability. This paper holds that damages for warranty liability should be understood as expectation damages, but limited, by the good faith rule, to the sales price. The reason for expectation damages being a starting point is that it corresponds more naturally with the basic rules set in the realm of ordinary contractual liability. Also, it facilitates the explanation of how repairing costs are able to be accounted for loss even prior to their actual expenditure. However, it does not mean that the entirety of expectation damages could be included within the scope of these damages. Damages irrelevant to the aforementioned purpose of law, which is to attain the subjective equivalence between the traded values, should be excluded. Extended damages due to defects are among the first eliminated, since they are clearly outside the purpose of achieving subjective equivalence. Repair costs conform with the attainment of that purpose. Nonetheless, even repair costs shall be recognized only within the boundaries of the contracted sales price, since that price is the position where the parties agreed upon to be a marker of subjective equivalence. Acknowledging damages beyond this point contradicts with the reasonable risk taken by the parties upon the conclusion of the contract, but also is adverse to the seller as damages in warranty liability do not require any fault from the seller’s side to be established. Furthermore, holding the seller accountable beyond the sale price disrupts the balance between a seller and a donor, since a donor does not bear any warranty liability in principle. Accordingly, in the given case, it is difficult to agree with the Supreme Court’s decision to grant damages of repair costs exceeding the contracted sales value consented by the buyer and the seller. The final amount of damages should have been limited to the sales price with the employment of the good faith rule. 대상판결은 폐기물이 매립되어 하자가 있는 토지가 매도되어 매수인이 매매대금을 초과하는 보수비용을 지출한 다음 이를 하자담보책임에 기한 손해배상으로 구한 사안으로, 대법원은 매매대금을 초과하는 보수비용 상당 배상책임을 인정하였다. 대상판결은 폐기물이 매립된 경위나 시기를 알 수 없어 매도인에게 귀책사유가 인정되지 않아, 채무불이행책임이 아니라 순수하게 하자담보책임 손해배상의 범위가 다루어졌던 사안이라는 점이 의미가 있다. 본고가 주된 논의의 대상으로 삼고자 하는 하자담보책임 손해배상의 범위는 구체적인 질문 형태로 바꾸면 ‘하자담보책임에 따른 손해배상액이 매매대금을 초과할 수 있는가?’의 문제라고 할 수 있다. 하자담보책임의 본질은 채무불이행책임이라고 파악함이 타당하다. 다만 하자담보책임과 관련된 개별 조항의 해석은 당해 규정의 의미와 목적으로부터 도출해야지, 담보책임이 본질에 관하여 어떠한 입장을 취하는지로부터 당연히 연역되지 않는다. 하자담보책임을 규율하는 제580조 이하의 규범목적은 유상, 쌍무계약인 매매에서 급부와 반대급부 사이의 등가관계를 유지하고, 혹시 등가관계가 깨지는 경우에는 이를 회복하는 데에 있다. 이러한 규범목적은 특히 개별 구제수단의 내용이나 한계를 설정하는 장면에서 해석의 출발점이자 경계선 역할을 한다. 하자 있는 특정물의 매도인이 부담하는 손해배상책임의 범위가 어디까지인지에 관하여는 견해의 대립이 있었고, 하자담보책임의 본질론에서 취하는 입장과 필연적으로 연결되는 것도 아니었다. 본고는 하자담보책임 손해배상은 신의칙상 매매대금으로 제한된 범위의 이행이익 배상으로 해석하여야 하고, 특히 하자로 인한 확대손해는 하자담보책임이 아닌 일반채무불이행 손해배상의 요건을 갖추어야 구할 수 있다는 주장이다. 이행이익을 출발점으로 삼는 이유는, 하자담보책임을 하자 없는 물건을 급부할 의무를 위반한 채무불이행책임이라고 보는 관점과 자연스레 상응하고, 보수비용 지출 전 단계에서의 손해를 설명하기 더 용이하기 때문이다. 다만 일반 채무불이행 손해배상과 동일하게 이행이익 전부의 배상을 인정할 수는 없다. 손해배상을 비롯하여 하자담보책임이 매수인에게 부여한 구제수단은 어디까지나 하자의 발생으로 인하여 어긋난 목적물과 매매대금 사이의 등가성을 교정하는 차원에서 머물러야 한다. 하자확대손해는 당사자들이 확보한 매매계약의 등가성을 넘어서는 손해이므로 배제되나, 하자보수비용은 등가성을 확보하기 위한 손해로서 이행이익에 일단 포섭된다. 하자보수비용도, 매매당사자들이 주관적 등가관계에 합치한 지점이라고 할 수 있는 매매대금을 한도로만 인정할 수 있고, 이를 넘어서는 부분은 공평의 원칙 또는 신의칙상 손해배상청구권의 행사가 제한된다고 보는 것이 타당하다. 하자담보책임은 ‘당사자들이 계약체결시에 하자의 존재를 알았다면 어느 지점(가격)에서 등가관계에 합의하였을지’를 재구성하는 작업으로 이해할 수 있는데, 하자보수비용이 매매대금을 초과한 경우에는 계약체결시로 되돌아가 가정적 재교섭을 시도해봤을 때, 계약당사자들이 합의하였을 만한 주관적 등가지점을 재구성하기가 곤란하니, 당사자들이 인수한 계약위험의 범위를 벗어난 영역이라고 할 수 있다. 무과실책임으로 운용되는 하자담보책임 손 ...

「전자상거래 등에서의 소비자보호에 관한 법률」 상 중개플랫폼 책임 조항의 개선방안

윤신승 한국경쟁법학회 2022 競爭法硏究 Vol.46 No.-

Considering recent trends of product suppliers’ growing dependence on online platforms, consumers’ expectations for online platforms’ monitoring of suppliers, and EU’s legislative trends, the approach to consumer protection through online platform brokerage may still be effective, provided that the application of liability theory based upon platform operators’ influence on suppliers and reliance by consumers is desirable. From this point of view, it is regrettable that the Korea Fair Trade Commission’s revised bill mainly stipulates in terms of appearance liability, and it is necessary to reconsider that certain indemnity provisions stipulated in the clauses based upon the appearance liability are not well harmonized with the theory of appearance liability. However, further research is needed on whether to recognize the liability for all intermediary platforms in terms of guardianship or trust, or whether a provision should be established to recognize the liability only for certain business forms (e.g., open market) or platforms which is larger than certain size or holding certain market share or more that can be seen as particularly strong influence over suppliers.

미국법상 약속적 금반언에 기한 전계약적 책임

이혜리(Hye-Ri Lee) 한국비교사법학회 2008 비교사법 Vol.15 No.4

Since parties in entering the contract strongly wish to maximize the possibility of its successful completion, they spent substantial amount of time in negotiation. During this negotiation, a party often might mislead other party to think the contract would be entered although they have not formalized the contract yet. Relying on such appearance, the other party might result in incuring the expense in preparing so that he or she can successfully enter the contract. Under such circumstance, Korean law provides the remedy for the other party based on tort law since there is no contract has been established. On the other hand, the American law classifies the different basis for precontractual liability(unjust enrichment resulting from the negotiations, misrepresentation made during the negotiations, agreement to negotiation in good faith, specific promise made during the negotiations-promissory estoppel). Especially the American case(Hoffman v. Red owl Stores) has found the precontractual liability by ruling that the act of reliance by the promisee to his detriment provided a substitute for consideration and promissory estoppel. furthermore, such promissory estoppel originally was invoked as a substitute for consideration rendering a gratuitous promise enforcible as a contract. However, under Hoffman case, it is not clear when promissory estoppel should be applied. Not only that, the court does not illustrate the extent of damage the court could provide under promissory estoppel. After Hoffman case, there are many different theories relating to promissory estoppel in precontractual liability. Different theories argue whether promissory estoppel is based on torts law or contract law or both or either. However, it seems that which part of civil law that promissory estoppel is based on does not matter if promissory estoppel provides the basis for remedy under precontractual liability. In order to accomplish the above goal we need to come up with more stable and definite formular for its application and damages for the loss.

계약체결상의 과실책임 법리의 고찰

홍성재 한국민사법학회 2010 民事法學 Vol.50 No.-

Sung-Jae Hong The damage incurred in the process of negotiating a contract is not the one that is incurred by the breach of contract. Thus, in this case, the damage cannot fundamentally recouped on the basis of legal principles of contract liability. However, the theory of culpa in contrahendo approves that in case the parties are already in the process of concluding a contract, each party has a duty to act carefully in order to protect the other party’s legal benefits. And this kind of duty to act carefully is regarded as a duty of contract. In case when one party violates the other party’s legal benefits, the damage incurred because of it can be compensated by the legal principles of contract liability, independent of or concurrent with tort liability. According to negative view, legal principles of culpa in contrahendo are derived from the specialty in German tort law, the restrictive rules of enumeration. Thus, different from BGB, Korean tort law has general and inclusive provisions, so that it is enough to remedy damaged party even though it doesn’t recognize legal principles of culpa in contrahendo. Especially, a protective duty of negotiating a contract which aims at protecting the other party’s body or property has the same substance with the duty to act carefully or the transit safety duty in tort law which are demanded in social life. However, if transit safety duty is imposed as a positive duty of careful act to prevent damage to other people, it may result in limiting a person’s freedom of action. That is, too much expansion of transit safety duty in tort law can possibly bring about the result to restrain a person’s freedom of action. On the contrary, if duty of security is understood as duty of contract law, it is advantageous because it doesn’t expand transit safety duty too much. and as a result, it does not violate a person’s freedom of action In addition, rather than restricting a person’s freedom of action by recognizing duty of security as duty of careful act in tort law among people, it is desirable to guarantee a person’s freedom of action to admit illegality only when breach of a duty of protection has occurred directly or indirectly related to special relation of co-occurrence. The area where culpa in contrahendo is in debate should not be confined to the case that violates so-called duty of security in the process of concluding a contract infringing upon the other party’s body of property. Rather, it should be understood that it includes a case that violates protection duty of good faith and fair dealing in the process of negotiation infringing upon the other party's life or property as well as a case that violates duty of providing information, e.g. duty of declaration infringing self-determination for the conclusion of contract and a case that disturbs just realization of a purpose of the contract. That is, culpa in contrahendo is responsible for infringing the duty of careful act in the process of negotiating a contract, it regards the other party’s legal benefits outside contract, like life, body, property, and freedom of decision-making concerning conclusion of contract as the benefit and protection of the law. In this perspective, it is excessive for the negative view to make a hasty conclusion that culpa in contrahendo is meaningless because certain specific case –when the other party’s integrity or existing interest is violated- can be solved by existing rules of tort law.

연구 논문 : 계약교섭의 부당파기

정성헌 ( Seong Heon Jeong ) 고려대학교 법학연구원 2011 고려법학 Vol.0 No.63

계약체결자유의 원칙상 계약이 성립하지 않은 경우 교섭으로 인한 비용은 각 교섭당사자가 진다. 그러나, 현대에는 계약교섭과정이 길고 복잡하여 계약성립에 대한 정당한 신뢰를 갖고 비용을 지출한 당사자는 계약이 성립되지 못함으로 인해 자칫 큰 손실을 보게 되는데, 이러한 신뢰가 상대방에 의해 야기된 경우라면 그 손실을 교섭당사자가 그대로 부담하는 것은 부당한 결과가 될 수 있다. 이에 대해 대륙법계에서는 계약성립 전에도 신의성실의 원칙에 따라 행동할 주의의무를 인정함으로써 이 문제에 대응하려고 한 반면, 영미법계에서는 이러한 주의의무는 그 불확정성으로 인해 인정하지 않고 부실표시, 약속적 금반언과 같은 기존의 제도를 이용하여 발생할 수 있는 부정의를 해결하고자 하였는데, 결과에 있어서는 큰 차이가 없는 것으로 평가된다. 대륙법계의 법체계를 도입한 우리이론은 종래에는 독일의 계약체결상의 과실책임(Culpa in Contrahendo)의 논의에 따라 교섭단계에서 채권 관계를 성립시킴으로써 신의성실에 반하여 교섭을 파기하는 행위를 채무불이행책임으로 규율하고자 하였으나, 최근에는 독일과는 다른 법규정을 근거로 들어 위의 경우를 불법행위법을 통해 해결하는 것이 타당하다는 견해가 지지를 받고 있고, 판례도 마찬가지의 입장이다. 본 논문에서는 책임의 성질에 있어서는 불법행위책임이라는 입장을 취하면서, 기존에 충분히 논의되지 못했던 부당파기행위가 불법행위책임을 발생시키는 요건과 그 효과에 대한 내용을 다루었다. 특히, 요건에 있어서는 단지 신의성실의 원칙에 의해 인정된 의무의 위반이 있는 경우에 책임을 인정할 수 있다고 서술하는 것에 머무르지 않고, 교섭파기의 유형을 둘로 나누어 처음부터 계약을 성립시킬 의사가 없이 교섭을 개시 또는 진행한 경우에만 불법행위책임의 성립의 기초를 인정할 수 있을 뿐 정당하게 교섭을 진행해 오다가 이를 중단한 경우는 상당성 유무를 불문하고 책임을 인정하지 않는 것이 계약체결자유의 원칙에 비추어 타당하다고 주장하였고, 효과에 있어서는 신뢰이익의 배상을 인정하는 취지는 기본적으로 타당하나 불법행위를 근거로 책임을 인정하는 경우 굳이 이 개념을 취할 필요가 없다는 점을 지적하였다. According to the principle of freedom to contract, when a contract is not concluded each party should bear costs occurred during negotiations. However, some contracts today need laborious and complicated procedures in order to be concluded, so a party might be burdened with a huge loss owing to the failure of conclusion. In this case, if a party spend his money on detrimental reliance and this reliance was caused by the other party, it would be unjust that a party should still bear the whole costs. While the Civil Law jurisdictions admit the duty to negotiate in good faith in response to this problem, the Common Law jurisdictions try to solve this matter by applying existing systems, such as a misrepresentation, a promissory estoppel. It is submitted that two different jurisdictions does not seem to make a big difference in the outcome of each problematic case though. We, as a country of the Civil Law jurisdictions, adopted German principle of ``Culpa in Contrahendo``, thereby interpreting precontractual liability as contractual liability. However, Growing criticisms are being made nowadays against this blind acceptance of this German principle, and the theory which treat this precontractual matter as tortious matter is broadly accepted, especially by the Korean Supreme Court. My conclusions, in this article, to the matter of ``breaking off negotiations`` are as follows. 1) The precontractual matters including the case of ``breaking off negotiations`` should be treated as tortious ones. 2) When it comes to requirements for liability, the case of ``breaking off negotiations`` should be divided into two different types(first, when a breaking party started negotiations, which was eventually broken, without intention of concluding contract, second, when a negotiating party broke off negotiations without any relevant reason), and the liability can occur only with the first type since breaking off negotiations is always possible, as long as the contract is not concluded, based on the principle of freedom to contract. 3) Allowing the claimants reliance damages is appropriate as a result, but when considering remedy as an effect of tortious liability the concept of reliance damages is not needed.

원시적 불능에 관한 민법 제535조의 개정에 관한 연구

김영두(Kim, Young-Doo) 한국재산법학회 2010 재산법연구 Vol.27 No.1

According to Art. 535 of Korean Civil Code(KCC), the party who knows or should have known that the performance of contract was initially impossible is responsible for the reliance damages to the other party. Some writers are pointing out the facts that new Art. 311a of German Civil Code allows the creditor to demand expectation damages in case of initial impossibility unlike the old German Civil Code, and Principles of European Contract Law(PECL) and Principles of International Commercial Contract(PICC) make the initially impossible contract valid and allow expectation damages to the creditor. They think Art. 535 of KCC has some problems and should be revised. To decide whether it is necessary to revise Art. 535 of KCC, firstly it should be examined that it is necessary to allow the creditor to demand expectation damages in case of initial impossibility. The justification of revising Art. 535 of KCC depends on the need for allowing the creditor to demand expectation damages. In short, when the debtor knows or should have known the initial impossibility of performance, the creditor should have a right to demand expectation damages, because the act that the debtor have entered into contract or have not informed the creditor what is concerned with the initial impossibility even though it knows or should have known the initial impossibility, is as blamable as the act that the debtor have made the performance impossible subsequently which allows the creditor to damand expectation damages. There is no reason to differentiate the remedies between initial impossibility and subsequent impossibility. The second problem of the revision of Art. 535 of KCC is concerned with validity of contract in case of initial impossibility. Even though the contract is invalid in case of initial impossibility, there is a possibility that the creditor could have a right of damages such as loss of profit through tortious liability. However the creditor couldn't recover the damages such as the lost value of performance itself through tortious liability. Such damages is recoverable only through contractual liability. So to allow the creditor to recover the damages sufficiently, contract should be valid in spite of the initial impossibility. If contract is valid and the creditor could recover the expectation damages in case of initial impossibility, the third problem is what is the essence of the liability of expectation damages of debtor. Such liability cannot be a liability of breach of contract, for which the fault that is concerned with the act of debtor breaching the contract is needed. But it is impossible to think of the act which amount to the breach of contract and the fault of that act in case of initial impossibility, because the debtor has no duty to initially impossible performance. So the liability of intial impossibility should be based on the guarantee that the performance is initially possible. Under the conclusion that the creditor should have a chance to recover expectation damages and the contract should be valid in case of initial impossibility, and that such liability should be that of guarantee, directions and content of revision of Art. 535 of KCC should be organized.

회사경영상 책임과 이사의 구제제도에 관한 고찰

고재종 한국기업법학회 2003 企業法硏究 Vol.14 No.-

Related to the Corporation Law in recent years, it greatly stressed on the improvement of the Corporate Governance and Corporate transparence etc. Due to the facts, the stockholders got to know much more the important information of corporation in comparison to the prior. Consequently, the Stockholders frequently enter the derivative actions against the abuse of director's authority On the other hand, the present directors did passively manage the corporation for reasons of the stockholders such acts and were reluctant to inaugurate as the new directors at the expiration of their term of service. In favor of solving such problems, the experts related the sphere in US. have striven for considering a countermeasure. and made a study of several systems for the sake of the immunity and reduction of directors liability. Concretely, the thesis are covered with the relief measures of directors before and after his management. In the former, it were explained the system of the business judgement, Reliance Defence and the immunity and reduction of director's responsibility. In the latter, it were explained the compensation of corporation and the liability insurance for Directors and Officers. Finally was investigated the possibility of the system introduction in our country.