意思表示의 瑕疵(1)

The Flaw of the Declaration of Intention-a mistake in regard to any essential elements of the juristic act -

Claims under a mistake in Contract law have raised a question and provided a source of persistent difficulties. It can be said that these difficulties have been partly due to the complex nature of the underlying issues found in Contract law. Intuitively, a serious tension exists between the concept that a mistake may be a ground for relief in contractual transactions and such basic ideas of contract law as risk-shifting and the security of transactions. Under the Korean Civil Code, however, a declaration of intention shall be voidable provided that a mistake be made with respect to any essential elements of the juristic act. This feature that the Korean Civil Code posit is very similar to that of the Japanese Civil Code. There are conceptual inconsistencies between the two legal systems about the identification of the “essential elements” and what their legal categories consist of. On the other hand, in France, an error warrants relief if it is in substance (substance) of the contract. Likewise, in Italy, if it is “essential”(essenziale), relief may be guaranteed. In Germany, although the connotation might be slightly different from others, if it is in a characteristic “regarded in commercial dealings as essential (die im Verkehr als wesentlich angesehen werden)”, a relief shall be warranted. This article has explored the concept of and requirements for the mistake relief by comparing different legal tools for the examination of a mistake adpted in Civil law regimes and Anglo-American systems, along with a scrutiny on the Korean and Japanese authorities. Moreover, it has tried to define requirements for a mistake to be warranted. In order to do so it has employed historical studies tracing back to Roman law in line with systematic exploration on the mistake relief regimes in the Civil law as well as the Anglo-Americans.