계약당사자의 신뢰와 해지의 자유

Contractual Trust and Freedom of Rescission for the Furure-Focused on Rescission of the Mandate Contract-

According to the Art. 689 (1) and Korean Civil Law(KCC), either party of contract may terminate a contract of a mandate for the future at any time. Also, according to the Art. 660 (1) KCC, either party may give notice to the other party of his intention to terminate the contract for the future at any time If no period for the employment has been fixed by the parties, Furthermore, even where a fixed period for the employment has been set by the parties, either party may, if any unavoidable cause arises, terminate the contract for the future(Art. 661 KCC). KCC has provided the freedom of contract termination in a certain types of the contract besides the general reason of the termination. The reason for the freedom of contract termination is based on the extraordinary personal confidential relation between both parties, and then either party can arbitrarily terminate the mandate contract each other and the contract of employment at any time. The common doctrine in Korea has agreed with the result, that the contract based on the confidential relation between both parties can be terminated without the reason of the loss of confidence or the breach of trust, he or she shall not compensate the other party for any damages occasioned by such termination, and the terminated party was accepted by the subjective emotion of the one of the parties. But the personal confidence is not meant the individual trust that a mandatary shall manage the affairs entrusted to him, but the trust with the care of a good manager in accordance with the tenor of the mandate. These kinds of confidence can be founded in loan for consumption and other contracts for the trust. Therefore, the common doctrine in Korea raise a question about whether it has justified to accept the freedom of contract termination based on the confidential relation between both parties. In oder to examine those questions, this study is willing to research the history of legislation of the freedom of contract termination in German Civil Law that is based on the legislation of KCC. In the case of the freedom of contract termination in German Civil Law, there are provisions of the contract of a mandate(Art. 671) and the contract for employment, which have provided the employee with services of the high quality based on the extraordinary personal confidential relation between both parties(Art. 627). Especially, this study is going to examine the correlation between the meanings of the personal confidence and the freedom of contract termination, and the consistency between the termination of a mandate and the termination on the other contract.