하자담보책임제도의 개정에 있어서 하자에 관한 개념


Research of the Concept on the Revision of System of Warranty Liability against Defects and on Defect


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It is desirable that the following issues are resolved legislatively: (1) the tedious conflict between a theory of legal liability, and a theory of non-performance liability, on the legal feature of warranty liability against defects, (2) the conflict between objective theory, and subjective theory, on the concept of defect, and (3) different views on legal obstacle. In addition, we required to revise the backward system and provisions of Korean Civil Law to adapt them to current reality and finally to adjust them to the global standard, keeping an eye on the tendency of legislation. Under the consciousness of the above issues, this research aims to examine the definition of the concept of defect regarding the revision of provisions of Korean Civil Law on warranty liability against defects and several issues to be considered on the definition. In particular, we examined the tendency of foreign legislation, focusing on the draft of a proposed revision of Japan's Civil Law (the Law of Obligations) Revision Committee. Basically, this research agrees to the definition of the concept of defect in Japan's draft, "In a contract for the purpose of providing a person with goods, Defect of Goods stands for the conditions of furnished good(s) (e.g. the lack of performance, quality and quantity of goods, etc.) which do not satisfy the contract, based on the parties' agreement and the purpose and feature of contract (onerous contract, gratuitous contract, etc.)." However, we are required to examine the definition of the concept of defect in which legal obstacle and, psychological and environmental defects are included. Further, we should examine a method for illustrating a certain case, the outcome of the revision of Germany's Civil Law, which does not have any defects. From the perspective of legislation description, these examinations might not be desirable in that they make the definition of defect broader to cause a certain degree of imbalance with other concepts or definitions. Therefore, we should seek a method for mitigating the imbalance by a concise illustration if it is possible.


< Abstract >
Ⅰ. 서론
Ⅱ. 하자의 개념에 대한 외국의 입법례 및 개정 동향
1. 독일
2. 프랑스
3. 일본
4. 시사점
Ⅲ. 민법개정에 있어 하자개념에 관한 논의와 과제
1. 민법개정 논의
2. 하자의 개념정의에 관한 규정의 신설시 검토할 사항
Ⅳ. 결론


  • 김학환 Kim, Hack-Hwan. 한국사이버대학교 부동산학과 교수


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