The classical theory of the law of contract has been developed under the principle of liberty of contract on the basis of free will of the parties involved in the contract. But, Growth of industry and monetary in contemporary society give rise to centralization of capital to specific minor social classes. As a result, discrepancy in social and economical power among individuals have grown wider and wider. Specifically, behemoths and expert groups have occupied a prominent position at the expense of powerless consumers in the real contract world.
The Inferior positions of parties in the contract bring about a serious imbalance with regard to the freedom of conclusion of a contract and decision contents of a contract. With these injustices in mind, the purpose of this study is to make a justification of contract contents by setting consistent limitations on the principle of free will in the contract.
Because legal regulations tend to be mostly vague and abstract, however, contract disputes that occur in legal practice cannot be fully settled under the conventional contract laws. In this regard, the main theme of this study is to establish legal theories that can close the gap between positive law and the idealism of serving justice. Essential to this legal objective is the legal principle of good faith.
This principle, however, tends to be extremely abstract and overgeneralize because of which this principle has been criticized for undermining legal stability. In spite of this, the principle of good faith should be applied to correct or repair imbalances if contract contents or legal regulations do not correspond to specific social justices. As a basis for discussion and theorization in this study Professor Macneil's Relational Contract 'Theory is referred to and quoted.
The principle of good faith imposes specific obligations upon the parties in contract relations. This principle levies certain collateral obligations on even the parties who are arranging to conclude contracts. In legal cases where the party who seek negotiation to conclude a contract violates collateral obligation, causing damage to the other party, legal problems occur with compensation for damage, which is referred to as culpa in contrahendo. And in cases in which .after the conclusion of a contract the debtor violates main performance obligation and collateral obligation in implementing the contract, leading to damage to the other party, liability on imperfect performance can be applied to the incurred damage.
Some theories and almost all the precedents in Korean Civil Law have tended to settled damage liability arising from culpa in contrahendo and imperfect performance based entirely upon the tort liability law. As compared with contract liability, however, his liability law tend to put the victim(the obligee) at a relatively disadvantageous legal position. While it would be advantageous for the victim to claim for contract liability, this legal right does not always prove to be favorable to the victim. This is because a claim for liability necessitates proving the imperfection of contract performance by the debtor, which is not so feasible in practice.
Therefore, in order to appropriately compensate the inferior party(customer or consumer) for his or her damage, the conventional liability law should be re-interpretated based upon the principle of good faith. In other words, legal disputes involved in damage compensation should be resolved based on contract liability and tort liability law, but also legal theories should be established to the advantage of the victim to the greatest extent possible. To be more specific, proof liability should be imposed entirely on the offender from scratch.
The contents and discussion of this study is composed as follows;
Chapter II discusses how obligation structure based upon the principle of good faith has been supported by various legal theories. Specifically, the principle of good faith is extended in its legal scope and applied to unfair contract relations.
In Chapter III, legal cases involving culpa in contrahendo are discussed to suggest legal settlement for each of the cases. In these legal cases obligations imposed on the debtor based on the principle of good faith are the obligations of explanation and notification, the obligation to provide relevant information, obligation for cooperation, and obligation for protection. Liability arises when a party in the contract violates one or more of these obligations during the contract negotiation.
Chapter IV is concerned with legal cases involving imperfect performance, especially contracts concluded between experts and non-experts. The most representative of all are medical contracts and contracts for legal defense. Medical contracts and legal defense contracts are atypical contracts and are characterized by their complexity and technicality. This is the reason why main performance obligation and collateral obligation imposed upon the parties tend to be complex and extensive. Despite of this disadvantage, legal arrangements should be made to compensate the victim for his or her incurred damage based on the principle of good faith.
Finally, Chapter V summarizes all the reviews and discussions made in the above chapters and suggests the conclusions drawn in this study.
In conclusion, the principle of good faith should be adopted and applied more extensively in legal interpretation and practice in order to correct inequal and unfair contract contents, ultimately aiming to serve the course of social justice.