계약해석기준으로서 ‘계약체결이후의 당사자들의 행동’에 관한 고찰

A Study on “the Conduct of the Parties Subsequent to the Conclusion of the Contract” as a Source for Interpreting the Contract

Directively and obviously, “the conduct of the parties subsequent to the conclusion of the contract” is provided for as a source for interpreting the contract in all of CISG, PICC, PECL, and the United States’ UCC and Restatement. In contrast, Korea’s Civil Code has no direct statement on the source for contract interpretation. In Korea, in connection with sources for contract interpretation, there are numerous discussions mainly on legal supplementary rule and trade usage. Also, the United States’ UCC and Restatement setting a clear hierarchy among sources for contract interpretation in which the sources, including express terms, course of performance, course of dealing, and trade usages, are sequentially resorted to, “the conduct of the parties subsequent to the conclusion of the contract” take priority over course of dealing and trade usages in the absence of express terms. On the other hand, if the language of the contract appears to be ambiguous or vague on its face, the courts of Korea consider the source in interpreting the contract but without any priority among various sources including it. In addition, I wonder why they do not use the source for the reason the language of the contract has an objective and plain meaning. For the contract wording, even if express, reveals the intentions of both parties more clearly, explained and supplemented by other interpretive sources consistent with it. Last but not least, according to the research conducted by Professor Lisa Bernstein, the parties have two types of intentions at the time of entering the contract. One is the intention that applies as long as the parties trust each other and value the continuation of their relationship, while the other intention applies in a situation when the relationship between the parties has broken down. The former appears as “the conduct of the parties subsequent to the conclusion of the contract” and is harmonized with legal supplementary rule, trade usage, the standard of good faith, etc. The latter, by comparison, is in accordance with the terms of the formal contract. Therefore, the problem is how the parties view their relationship at the point of filing a lawsuit. Since Korea’s contract culture differs from that of the United States, the intentions of contract parties in Korea can probably be presumed to be in relationship-preserving stage, even if the relationship between them has reached to the state of filing a lawsuit. As a result, when it comes to priority among interpretive sources, “the conduct of the parties subsequent to the conclusion of the contract” overrides express terms inconsistent with it.