우리 민법상 손해배상책임의 일반조항 형식에 관한 小考 - 프랑스 민법, 독일 민법과의 비교를 중심으로 -

초록

On the whole, the Korean Civil Code has followed the Pandekten system (German style). However, if one takes a close look at Korean civil law, one could see that some important systems have their roots in France. One of the typical examples is the form of statement of general principles as regards civil liability: both in contract liability (Art. 390 of Korean Civil Code) and tort liability (Art. 750 of Korean Civil Code). With regards to the right to terminate the contract, the Korean Civil Code provides stipulations according to the categorization of non-performance, such as delayed performance, impossibility of performance (Art. 544 & 546 of Korean Civil Code). Although a plan for these two articles (Art. 544 & 546) has been developed in South Korea, it does not categorize non-performance. The French Civil Code has maintained the form of statement of general principles even after the 2016 reform. As for tort liability in France, it has not yet been revised but reforms are in progress. The form of general principles is not expected to change there. Thus, the Korean and French Civil Codes take the same positions in this regard. One of the merits is that we do not need to reform provisions frequently because flexible application is possible. Koreans and Frenchmen have been sufficiently conscious of the advantages. I am certain that further exploration of French civil law will be of no less interest and of good use to Korean civil law scholars and lawyers.

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