강박의 확장- 영국 판례 중심 -

The English courts have accepted that a breach of contract or threat to commit a breach of contract mightamount to economic duress since 1970s. Economic duress requires illegitimate threat which subjectively causedthe victim to act as he did, and which objectively would have caused a reasonable person in the victim'sposition to act in the same way. Realistic alternative course of action plays a significant role in determiningobjective causation. The English courts seems to have the view that a breach of contract or threat to commit a breach ofcontract could be illegitimate threat. If a threatened breach of contract arises from the circumstance of his ownmaking, is made in bad faith, and the agreement resulting from the threat is substantively unfair, it may beregarded illegitimate threat. In Korea, there seems to be little discussion on that. Although, the threat is to do something lawful, like publishing a true report in a newspaper, it is anillegitimate threat if it is made with the motive of extorting money. In this regard, the English and Koreancourts seem to be in the same position. A person who is under no duty to contract with another may threatennot to contract with that person except on particular terms. Such a threat is not illegitimate and does not giverise to duress. However, if the threat not to contract with the complaint except on specified terms is made toback a demand that is not made in good faith, it may be regarded as illegitimate threat. The English courtssuggest that a threat to do a lawful act might constitute duress if the party exerting the pressure acted in badfaith, for example by attempting to gain an advantage he knew he was not entitle to. In England, economic duress requires both factual causation and objective causation. Factual causation is thata threat subjectively caused a victim to act as he did. Objective causation is that a threat objectively wouldhave caused a reasonable person in the victim's position to act in the same way. In Korea, duress requires onlyfactual causation. Without objective causation, the extent of relief based on economic duress would be too farreaching and according to a victim's personal situation, relief for the same threat would be different. So Ibelieve that it is reasonable for economic duress to require objective causation. In these reasons, I believe that in construction of duress of Korean Civil Law, we need to extend duress byaccepting the English courts' view that a threat not to contract or to breach a contract in certain conditionsmight amount to duress and adopt objective causation in economic duress, in order to protect the parties' freewill.