프랑스 민법상 채무불이행으로 인한 손해배상책임의 구조 - 우리 민법에의 시사(示唆)를 생각하며 -

초록

In this paper, I examined the structure of Article 1231-1 of the French Civil Code, which provides for contract liability, and compared it with the corresponding Article 390 of the Korean Civil Code. Along the way, I investigated such French legal notions as force majeure, and obligations de moyens and revisited the standing Korean jurisprudence, which has already adopted the notion of obligation de moyens. I note that the French Civil Code has established the principle of private autonomy in many significant places. For example, Article 1231-1 contains no explicit statement of the fault requirement. Furthermore, as regards the scope of damages, Article 1231-3 mostly considers the foreseeability of contracting parties. These two points are in stark contrast with Articles 390 and 393 of the Korean Civil Code. I think that the French position is informative for us. In light of private autonomy, it is logical that contract liability, unlike tort liability, should not require fault in principle. In actuality, for one reason for another, warranty liabilities (liability without fault) are very frequently in motion. French law has been said to occupy a position intermediate between common law (strict liability) and German law (fault principle). It is noteworthy that in France, there has been little controversy over the relationship between contract and warranty liabilities. On the other hand, Korean jurisprudence and academy have examined this issue over time. In my opinion, the French position might offer a clue to one of the solutions that Koreans have been seeking. This issue is closely related to a revision of extinctive prescription.

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