告知義務를 중심으로 한 침묵에 의한 사기의 재검토

Compared with the past decades, the jurisprudence tries to substantiate the conditions of nondisclosure. Still the criterion is rather ambiguous and this article is dedicated to this question. First of all, with reference to the recently undertaken reform of french civil code I examined the new provision which disconnects the duty of disclosure and the duty of inquiry. This provision arises from the jurisprudence of the Court of Cassation. The french jurisprudence and the supporting arguments, which is finally incorporated into the New Code Civil, emphasized that nondisclosure should be assimilated to traditional fraud, hence also the duty to disclose shall not been balanced against the duty to inquiry. On the other hand the opposite view points out that nondisclosure itself doesn’t induce the mistake, but only exploits it. Also the Korean jurisprudence acknowledges that fraud by silence would be accepted even if there is a fault on the part of the ignorant party. In the end it is a matter of balancing between the principle of good faith and the principle of private autonomy. After examining the PECL, DCFR, german and french civil law and 2nd restatement of tort law some important factors which influence the duty to disclose get specified: the cost to the party of acquiring the relevant information, whether the other party could reasonably acquire the information for himself and whether the party had special expertise. Under each category the illustrations are reviewed in the light of law and economics, especially by the criterion asserted by Kronman. The most important criterion is the cost to the party of acquiring the relevant information.