受給人의 瑕疵擔保責任에 있어 瑕疵의 槪念

Defects of Independent Contractors Works

The discovery of defects during work or after a project has been completed often generate disputes. An owner who believes he has not received the project to which he is entitled often seeks to transfer any resultant loss to those he claims have caused the defect. We have a dozen of civil code articles laying down defect liabilities, none of which introduce a definition of defects themselves. This study concentrates upon the concept of defects, especially of independent contractor s works. Historically traced, the understanding of the concept has changed so much during a very long period, that the historical explanation had better be a starting point. Roman expression of the contract for work, location conductio operis, didn t know the institution of defect liability but only the breach of agreements. Current defect liabilities have their roots in another Roman institution established and developed by official market regulators in the area of sale law, further developed and generalized into other contracts by natural law theorists and canonists, and finally codified into some early modern codes: French, Prusso-German, Austrian and Swiss. The resemblances and differences among them are scrutinized in this study(Part Ⅱ), mentioning several points as belows: What can we say be the characteristics of the work contract? Did the codification contain an separate chapter for the work contract, cover intangible defects as well? Was the regulation a sub-system of general breach of contract liability or an independent agreement-indifferent liability system? This study answers like this: Firstly, the party providing work has control over the performance process, but only has to use control for the other party s sake. Secondly, the objects of the work contract has been continuously spread all through the time. Thirdly, contractors defect liabilities could be called as products of practical needs on the doctrinal basis of contractual performance obligations, not those of historical traditions. Following the above observations, this research tries to make clear the possible standards of defective works(Part Ⅲ), at first with discussion starting from the defective goods in sale. Doctrines currently explain this as the absence of quality or performance that must be present at the goods, while they add the failure of promised quality in describing that. But such a dualism should be overcome; a defective work can be defined as failure of the work to meet the quality or quantity requirements expressed in or implied by the contract. Thus there is only one standard of agreed quality. And a differentiation must be made between expressed and implied agreement; to each of them apply general theories of agreement interpretation. Looking ahead, in interpreting, an important role might be played by the specified use expressively or impliedly agreed by both parties and supposed by the owner in the project contract. Very instructive is the German new legislation that gives up the requirement of additional warranties(“Zusicherung ) to end its prolonged dualism. Some people say that the currently increasing objective elements, such as public safety guidelines, could be a challenge to the subjective understanding; however, those should, not as it is but only in the complex process of contract interpretations, be admitted into agreement, and hereby into determining a defective work.