유럽의 契約法 統一 論議와 混合法系(Mixed Legal System)의 대두

The Harmonization of european contract law and Mixed Legal Systems

1. The internalization and the trend to form economic blocks in the world economy has resulted in the need for the unification of private laws in the EU, and many comparative studies of private laws are being conducted rigorously to achieve this. Such studies are designed not to simply improve domestic legal systems, but to pursue the harmonization of them with the globalizing world. 2. Recently, in addition to the discussions in the EU, while there is a difference in the degree of depth in discussions, the same discussions have started in East Asia on the issue of the unification of contract laws (or transactional laws) to be applied to East Asian region uniformly, in light of the increase of exchange of goods and services among the three countries (Korea, Japan, & China). Such attempts to develop unified laws will be limited to East Asia for the time being. In the long run, however, they can go beyond the boundaries of East Asia, by being synchronized to the unification measures on contract laws in other blocked economies. In other words, the East Asia unified contract laws may develop to the unified laws between EU and East Asia through ASEM. In that case, we need to examine the current discussions in the EU on the unification of private laws including contract laws, and this is the task for the researchers and practitioners in the filed of comparative private law. 3. The contract laws or transactional laws in the three countries in East Asia have the features of both the Civil Law system and the Anglo-American system. As discussed in the context of the unification discussions in the EU, it is required and emphasized that we seek harmony and compromise between these two systems. As such, it is necessary to study the experience of a country with a mixed legal system from a view point of comparative law, and such a study will substantially contribute to effective unification processes. Accordingly, the comparative study of private law should now take the mixed legal systems as a study object. 4. The European countries are now seeking the source of the overlapping principles, rather than insisting upon the superiority of their individual domestic legal systems. As a result, the discussions progressing in Europe, the so-called 21st Century Methodology for comparative legal studies, are moving from the simple comparison of the laws of different countries, to the historical comparative study of private laws, seeking the historical sources of such laws. The above tells us that our study of private law, with the historical need to study the Western private laws as a study object, should not focus only on specific provisions of such laws, but take the historical background and the legislative process of such laws as a study object. From now on, our comparative study of private law should pay more attention to the historical comparative study of private laws based on the solid foundation of legal history and comparative law.