계약을 통한 사적 자유의 제한과 그 한계 - 광고계약을 중심으로 -

Freedom of Contract is one of the most important principles in the Civil Law. But this freedom also must be realized within legal system formed by Constitutional Law. So when judges the validity of contract or interpret the intent of contract, they must respect the value of Constitutional Law. The examples that contracts restrict the fundamental rights are non-competition duty clauses in employment contracts and the keeping dignity duty clauses in advertising contracts. The former clauses protect the trade secrets of employers, but also restrict the rights to work and freedom of vocational choice rights of employees. The latter clauses protect the rights of advertisers, but can infringe on the models' privacy. In former case Korean Supreme Court balance between freedom of vocational choice rights of workers and employer's rights of property (Korean Supreme Court Judgment 2010. 3. 11. 2009Da82244). But in latter case of keeping dignity duty clause the Korean Supreme Court just recognizes a model's duty of keeping dignity in advertising contracts without balancing between the model's privacy and the advertiser's interest (Korean Supreme Court Judgment 2009. 5. 28, 2006Da32354). However two cases are identical to its evaluating. Therefore also in latter case it is necessary to balance between the model's privacy and the advertiser's interests. At this stage, the following factors can be considered; (1) what remedy is claimed by the advertiser, (2) whether such remedy is explicitly provided in the agreements and (3) how seriously the model’s freedom is infringed on.