유럽私法統合의 動因과 展望

The Cause and the Prospective of Unification of European Private Law

The effort to unify of european private law is for the integration and active functioning of internal market. This effort is closely related to the globalization and regionalization. European Communities has continuously made effort for the active functioning of internal market. However there still remains the barrier to the internal market. To remove the barrier, European Commission sent Communications to the Council and the European Parliament in July 2001, February 2003, April 2004. The purpose of the Communications is to identify the problems resulting from the divergences of national contract law and to search for the possible action that European Communities should take from now on. In conclusion, the action of the European Communities for the active functioning of internal market may be summarized as three. First, Common Frame of Reference(CFR) will be used for the improvement of the Communities acquis. The legal nature of CFR is not yet decided, but it will include the principles of contract law, the definition of abstract terms, the model rules of contract law. Second, The Standard Terms and Conditions(STC) will be encouraged for the cross-boarder transactions in European Communities. EU-wide STC will partly remove the barriers to the transactions caused by the divergences of contract law and commercial practice. Third, the necessity and the possibility of uniform contract law such as optional instrument will be reviewed continuously. The adoption of European Civil Code seems to be impossible but in the area of contract there remains the possibility of adoption of european contract law. Even though the uniform contract law is adopted in Europe level, it could not replace the legal system of a member state and should coexist with the latter. Therefore european contract law would be applied when the parties of contract choose it as a applicable law of their contract. Moreover there still remains many problems for the european contract law. For example the problems of the legal form, application scope, legal basis should be settled. It seems that the present main stream for the harmonization of european private law is the academic effort of model law, for example “Principles of European Contract Law of Commission on European Contract Law, “European Civil Code of Study Group on a European Civil Code, “Principles of European Tort Law of European Group on Tort Law.