키케로의 『의무론』과 매매에 있어서의 고지의무 ― 현행법적 시각에서의 분석을 중심으로 ―

초록

Marcus Tullius Cicero discusses the cases where good and benefit conflict in Volume 3 of his De Officiis, and in this regard, two cases in which the obligation to inform in a sale is the issue are explained. The first is about grain merchants who brought grain to Rhodes Island, where people in are suffering from starvation, and the second is about the owner of a house who wants to sell a house with defects. In both cases, Cicero introduces Antipater's arguments in favor of the existence of the duty to inform, and Diogenes' arguments in opposition, taking the same position as Antipater. Cicero's position is understood to be directly related to the ethics of the Stoic school. Several criteria are presented in the review of these cases, including legal and moral relations, merchantability of the seller, latent defects and patent defects, and the distinction between defects related to the object itself and external matters. As these criteria generally have certain implications under the current law as well, such criteria were reviewed from the perspective of the current law. Based on such a review, this paper examined the above-mentioned two cases from the perspective of current law. First of all, in relation to the case of housing sales, latent defects are included, so it is highly likely that the obligation to inform will be recognized under current law. In the case of Rhodes Island, although the duty of inform is recognized in the Principle of Good Faith in certain real estate sales according to precedents of Korean Supreme Court, it is difficult to impose an obligation to disclose all information on the external situation of an object in ordinary trading relationships. However, what should not be overlooked is that just because the legal system does not regard it as an obligation, it cannot be said that it is not an obligation to maintain our society. In addition, even if some of the moral obligations cannot be included as legal obligations from the current legal point of view, other approaches may be possible in the future as long as the channels are in place. I think it is impossible to maintain a desirable community if everyone does not fulfill their moral obligations just because the law does not declare it an obligation.

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