契約締結上의 過失責任 = The Liability of Culpa in Contrahendo

다국어 초록 (Multilingual Abstract)

I want to establish a general, systematic legal theory about the liability of culpa in contrahendo in this article, so in this study various theories and cases in Korae and other countries were considered.
The liability of culpa in contrahendo, the aim of this research, is defined that a person who committed negligences in the process of making a contract should compensate for the damages the other party has been suffered. In Korea Civil Law only the case of art. 535 was regulated about that. But this liability of culpa in contrahendo must be discussed on every condition such as the completion of contract, its invalidity, cancellattion, in completion as well as in the preparatory phase for concluding a contract.
But the more important problem lies at whether this liability of culpa in contrahendo should be treated as a certain contract liability or as a tort liability, and what its ligal base is. Because both parties' relation in the phase when negligences occur is not the contract relation yet. But once the contracting parties enter into the preparatory phase of contract, it should be regarded as that they already lies in the relation of special cooperation analogous to a contract relation. So the negligence and the compensation for damages which spring from that relation should be solved with the theory of contract liability. To do so, both parties' relation above must be recognized as a certain legal debt relation. Therefore, the liability of culpa in contrahendo means at last the liability for violation of protection duty which springs from this legal debt relation.
This protection duty is differentiated from the accompanying duty which occurs after the completion of contract, and ends when the contract is completed.
Finally the effect of the liability of culpa in contrahendo will be the compensation for damages and rescission. As the natural result of the contract liability the compensation for damages must depend upon the theory of performance profit.

목차 (Table of Contents)

• Ⅰ. 序言
• Ⅱ. 意義
• Ⅲ. 比較法的 考察
• 1. 沿革
• 2. 各國動向
• Ⅳ. 類型
• 1. 序言
• 2. 契約準備段階에 있어서의 過失責任
• 3. 契約이 有效하게 成立한 경우의 過失責任
• 4. 契約이 無效·取消가 된 경우의 過失責任
• Ⅴ. 法的 性質
• 1. 不法行爲責任說
• 2. 契約責任說
• Ⅵ. 過失責任의 效果
• 1. 損害賠償
• 2. 契約解除
• Ⅶ. 結論