신종전형계약의 민법전 편입 방법론에 관한 연구

Abstract

The expansion of the ‘typical’ contract of korean civil code means the expansion of the freedom of contract. Therefore, the incorporation of new contracts into the Civil Code due to changes in society is more than welcome. Based on the discussion at the time of working on the civil law amendment in 2014, which didn’t succeed, this paper explored the meaning of incorporating new contracts into the civil law after examining the kind of methodology of legislation, typology of new contracts, and types and solutions of mixed contracts etc.
 First of all, the incorporation criteria at the time of working on the civil law revision in 2014, such as it’s utilization in daily life, frequency in court decisions, validity based on comparative legal research, it’s independency as a type of contract and normality, are still considered valid. As a legislative method, the legislative process is important, but the pre-legislative evaluation is also important, and legislative policy decisions must be made carefully. It was emphasized that the so-called salami legislative strategy has limitations and that the system and unity of civil law can be improved through a full amendment. This paper urges people to be alert to the phenomenon that contract types closely related to the daily life of the people are settled outside the civil law (excessive expansion of special privatel law) and to accept them back inside the civil code. At least, it is necessary to always keep in mind the interpretation of systematic harmony with the basic principles and rules of civil law. Travel contracts, brokerage contracts, and medical contracts were discussed only to the extent necessary in relation to the subject of this paper. The characteristics of typology (openness, totality, hierarchicality, clarity, and flexibility) were examined through examples of transaction-typical contracts. The key is to detect the difference between “subsumtion” and “classification (to type)”. In addition, the types of mixed contracts and their solutions were explored by leaning on some Supreme Court's precedents. The worth-evaluating, meaning-centered, and overall observation methods, which are characteristic of typology, generally present specific and valid solutions to the issues, but this is also the result of enduring some uncertainty of typology. Research and reflection on the solution of mixed contracts are also meaningful in the discussion on the incorporation of new contracts into the Korean Civil Code. When legislating a typical case in which the combination solution is judged as reasonable, appropriate methods (e.g., applying mutatis mutandis to each typical contract or applying specific regulations to them each) are used, and the legal requirements by legislation are more strictly defined in cases where an absorption solution is valid (e.g., using rule-exception regulations). The theory of interpretation follows accordingly. Furthermore, in the case of a contract that includes 'atypical elements', it is necessary to be careful in the analogical application of the relevant contract regulations or laws within the scope of such 'atypical elements'. The study of modern contract types is, in the end, an exploration of 'structural types of contracts’ - as can be seen in the contract structure theory and non-performance structure theory or case structure theory. And the normative power of those structures types comes from the empirical foundation of the practice and the broad approval of related organizations such as academia. In the type of structure, existence and justification are not separated. They communicate with each other. And as this communication is repeated, orderly(structure-oriented) regulating of ever-changing reality can be achieved. As a result, a more realistic 'normative structure type' is to be found.