프랑스 민법상의 수단채무와 결과채무

초록

The concepts of "obligation de moyens" and "obligation de résultat" that originated from French civil law have influenced Korean legal academics and precedents. This article examines the development of obligations de moyens in French civil law, its operational logic, and related French judicial decisions. A comparison is made between these concepts and Article 390 of the Korean Civil Code. First, although the concept of obligation de moyens is present in Korean precedents, cases directly involving this concept are few compared to French precedents. While France adheres to the principle of non-cumul between contractual and tort liabilities, Korean civil law recognizes cumul of the two. Given that Article 750 (tort liability) of the Korean Civil Code requires the creditor to prove the debtor’s fault, the concept of obligation de moyens is seldom needed in South Korea compared to in France. Second, this article considers whether an obligation de moyens or an obligation de résultat is needed from a legal policy perspective. Particularly, in cases where there is a need to protect a victim, the applicable concept is considered the obligation de résultat. French scholars have pointed out that the practical role of the concept is based on the contractual protective approach. Third, France, due to the limitations of the no-fault principle addressed in provisions regarding contractual liability (Article 1231-1 of the French Civil Code), France developed the obligation de moyens renforcée to seek fair solutions in individual cases. Article 390 of the Korean Civil Code already recognizes such a concept. Therefore, it is essential to evaluate continuously how to respond to cases falling within the domain of obligation de résultat, which Article 390 of the Korean Civil Code does not address. If the Korean legal system is insufficient, an amendment to Article 390 should be considered.

키워드