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계약해석에 있어 형식주의의 정당성 및 한계

Title
계약해석에 있어 형식주의의 정당성 및 한계
Other Titles
The justification of formalism in contract interpretation and its limit
Author
최준규
Keywords
계약해석; 문언해석; 형식주의; 당사자 자치; contract interpretation; textualism; formalism; party-autonomy; 민법
Issue Date
2012-09
Publisher
한국민사법학회 Korean Civil Law Association
Citation
민사법학 The Korean Journal of Civil Law., Sep 2012, 60(60), P.3-57
Abstract
Contract interpretation aims primarily at ascertaining the common intention of parties. But parties often have different ideas about contract terms or, even have no idea of what the terms exactly mean. Therefore, courts try to construct contracts on the basis of the meaning that a reasonable man would have attached to the contract terms. In this process, normative, policy-oriented judgement can be made. Textualism can be justified, because text is a trustworthy evidence of parties’ will. But textualism and formalism in contract interpretation can also be justified, because it can decrease transaction costs, help to innovate commercial practice, promote party autonomy. Sophisticated parties(ex. firms) can make detailed contracts at lower costs, and they weigh the predictability of courts’ decision. So, textualism and formalism may be desirable in interpretation of commercial contracts between firms, except in the case of information asymmetry or bargaining power problem. So, when interpreting commercial contracts between firms, courts are required to emphasize the meaning of ‘written’ contract and refrain from implying contractual obligation, redistributing contractual risks, enforcing indefinite terms. But textualism and formalism have weakness. They should not ignore parties’ will. And in case of information asymmetry, party’s opportunistic behavior etc., courts’ active role may be desirable.
URI
http://www.dbpia.co.kr/Journal/ArticleDetail/NODE01977027http://hdl.handle.net/20.500.11754/43403
ISSN
1226-5004
Appears in Collections:
SCHOOL OF LAW[S](법학전문대학원) > Hanyang University Law School(법학전문대학원) > Articles
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