賣渡人의 擔保責任에 관한 민법규정의 改正을 위한 一提言

Abstract

This paper has focused on my personal opinion that aims to investigate problems in the provisions of liability for breach of warranty of the Seller in Korean Civil Code now in force(hereafter "current Civil Code") and to propose a way of revising and a definite plan for amendment of the current Civil Code for the purpose of modernisation of our Law of Warranty of the seller with a view to come up the current Civil Code to the global standard. The summary of conclusions of this paper is as follows. (1) The current Civil Code provides liability for breach of warranty(ensurence that the goods conform to the contract) of the seller seperating from liability for non-performance of obligation of the seller to transfer perfect ownership to the buyer. But judging from the point of view of the theory of Liability for non-performance, the cause of separation of this two liabilities in current Civil Code is not logical but is merely historical. In my opinion, it is not only possible to consolidate two types of liabilities(a liability for breach of warranty of the seller and a liability for non-performance of obligation of the seller to transfer perfect ownership to the buyer) into one consolidated liability but also it is desirable. So I has proposed a Draft(the 1st Draft) that follows the model of German Civil Code(BGB) that consolidate two types of liabilities into one unified liability. But with regard to feeling of refusal for the unifying system and the convenience in practical jurisprudence, I has proposed another Draft(the 2nd Draft) that adhere to the system of the current Civil Code that provides dual liability for breach of warranty and non-performance. (2) It is necessary to revise the provision of the Section 568 of the current Civil Code to in-sert a provision for the obligation of the seller to transfer the perfect ownership of the goods and the obligation of the seller to deliver the non-defected goods that conform to the contract. The purpose of codifying the obligation to transfer the perfect ownership of the goods and the obligation to deliver the non-defected goods of the seller is to unify the system of the law of obligations by subsumption the law of liability for breach of warranty in the law of obligations by making clear that the nature of liability for breach of warranty is a kind of liability for non-performance. It means that the theory of "a specific thing dogma" is denied, and it means that the liability for breach of warranty in a specific thing that has a original and incurable defect is also a kind of liability for non-performance. Hence it is necessary to delete the Section 535 of the current Civil Code that prescribes liability for breach of pre-contractual duty that premise the theory of Impossibilium nulla obligatio and to delete the Section 462 of the current Civil Code that prescribes the obligation of a debtor to deliver the specific thing as existing condition. (3) In this paper I has proposed two types of Drafts(the 1st Draft is a draft that consolidate two types of liabilities into one unified liability and the 2nd Draft is a draft that provides dual liability for breach of warranty and non-performance) for the liability for breach of warranty of the seller to transfer perfect ownership to the buyer, the core contens of the 1st Draft is the establishment the new unific Article(Section 569) that provides condition and effect(remedy) of the liability for defective right(ownership etc.) and liability for defective goods deleting most part of provisions of the liability for defective right in the current Civil Code. (4) In the 2nd Draft I has proposed that it is necessary to codify clearly that it needs intention or carelessness for remedy the effect of the liability for defective right. (5) It is necessary for resolving difficulty of interpretation caused from structural defect in the current Civil Code, for rebuilding legal system of liability for defective right and goods system, and for coming up the current Civil Code to the global standard to revise and unify the Section 580 and 581 in the current Civil Code and to codify clearly and in detail the concept of defect of goods etc.