계약체결상의 과실책임 법리의 고찰

An Examination on Legal Principles of Culpa in Contrahendo

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.