계약법에서 손해의 성질결정

대법원 2006.2.10. 선고 2003다15501 판결을 중심으로

Why have they evaluated ‘the damage as the object to have to compensate’ as the expectation interest against the reliance? And what is the reason? This work with the same recognition as its setting has got a thorough going over a case(́=2003Da5501) known as the Expo, and I have analysed the character and the basis on the law of contract that belong to the damage as the object to have to compensate. It especially is dependent on the scholarship of the anglo-american law of contracts. It recently have been admitted the reliance damages by the Supreme Court of Korea, including this case. This means that admitted cases offer a clue to insist on the theory that this damage’s nature must be the reliance interest against the expectation. Because the doctrine of mitigation have been acclaimed as the basis of the reliance interest by the courts, legislations and theories. According to the Article 77 in CISG, a party who relies on a breach of contract ought to take such measures as are reasonable in the circumstances to mitigation the loss, including loss of profit, resulting from the breach. If he fails to take such measures, the party in breach may claim a reduction in the damages in the amount by which the loss should have been mitigated. So in actuality, it is impossible to compensate the expectation damages in full. Moreover, this thought to determine the character of the damage laying stress on the reliance interest provide a beginning of question, where the source of the legal binding power of contract comes from.