민법상 계약상의 과실책임제도의 운용방향

This article deals with the interpretation of §535 which regulates the initial impossibility under the title of culpa in contrahendo(c.i.c.). If a contract is agreed in pursuit of realistically or legally impossible thing, the one party, who did not give enough attention or inform the other of it appropriately should be responsible for the fruitless loss of the other. The scope of compensation should be limited to the reliance interest which the other got under faith of the performance of the one party. I think it is a appropriate balance of interest which corresponds to the needs of practice. Further even if it is not a case of initial impossibility in a strict sense, this paragraph is to be applied if the contract was not agreed or sentenced to voidness because of other causes. If a initial flaw which can bring the contract to impossibility of performance, is not informed and the flaw is realized after conclusion of contract, it can be categorized into non-performance, but sometimes it is better to be categorized into c.i.c. especially in case that the party has enough ground to believe to overcome the hurdle. On the other side I thought the responsibility of unfair breaking of negotiation belongs to the other category than the c.i.c. Our civil code has no legal ground for the breaking of good faith principle in the phase of negotiation, In this condition it is some unreasonable to use c.i.c. only based on the title of §535. De lege ferenda it is recommended to maintain the basic form of §535 to use as a ground of initial impossibility even we overcome the dogma of voidness of initial impossibility. The amendment draft reflects this idea and offers the independent ground under the title of ‘impossibility at the time of conclusion of contract’. We need more deliberation on the issue if the new ground of compensation is offered as a general culpa in contrahendo.