영미법상 제3자의 계약침해

Interference with Contractual Rights

In Anglo-American Common Law system, an intentional interference with contractual rights is recognized as a kind of torts, and the law of interference with contractual rights is a part of a larger body of tort law aimed at protection of relationships. It first appeared in definite form in 1853, in the English leading case of Lumley v. Gye in which considerable stress was laid upon the “malice of the defendant. It was reaffirmed and extended in England, first to cover contracts other than those for personal services, and later to include interferences in which no ill-will was to be found on the part of the defendant. The American courts were reluctant to accept the doctrine in the beginning, and a few of them rejected it as applied to interference with contracts other than that of master and servant. However such decisions have for the most part been overruled, and the tort is now recognized virtually everywhere, as to any contract, regardless of its character. And with regard to its requirement, many American jurisdictions and the Restatement of the Law of Torts (second) do not require the malice of the defendant. Instead of the defendant s ill-will, they acknowledge the defendant s liability when they found that the defendant s act was improper. Furthermore the Restatement §767 provides seven factors to help determine other instances when interference with contract or prospective economic relations are not improper. However it has been argued by some American legal scholars, such as Perlman and Dobbs, and by some courts that the tort of intentional interference with contract or prospective economic relations ought to be restricted to imposing liability when there is a definable wrong committed by the defendant. On the other hand, in Korean legal theory and cases, this kind of tort is recognized only in the exceptional instances when an intentional interference with contractual rights(in German, Forderung) is regarded as a breach of public policy. And this consequence(i.e., the rigid requirement for recognizing this type of tort) is resulted from the correspondent German legal doctrine(in German, die Verletzung von Forderungsrechten durch Dritte). However, in detail, Korean torts law is different from that of German civil law, especially Korean civil code §750 is not identical with German civil code(in German, Bürgerliches Gesetzbuch) §§823ff. So in my opinion, Korean legal theory and cases in this area must be reexamined and rebuilt in the light of the interference with contractual rights in Anglo-American Law system. In addition to it, I think that the economic analysis of the law of torts in American legal theory is very useful for the reexamination of the Koran legal theory and cases.