계약당사자 쌍방에 공통하는 동기의 착오

Article 109 of Korean Civil Code provides for the avoidance of a contract on the ground of a mistake. However, it may be hard to say that the mutual mistakes in motives between contracting parties can be solved by Article 109. In response, Professor Tuck-Soo Song presented a solution by “Interference with the party’s subject basis of the transaction” through his paper “Mutual Mistakes in Motives” published in 1989. I examined the contents of Professor Song’s the above paper and compared the past and current domestic theories and our court’s rulings about that theme. As a result, I could find that the above paper resonated significantly in our academia and courts at the time when little awareness was made of the specificity of that theme and triggered many studies on that subject. I set the implications of the mistake under U.S. law in the direction of future research, and note that mistakes as well as misrepresentations have various remedies such as reformation, avoidance, termination of a contract, or compensation of damages. Through this, I could confirm the insights of Professor Song, who took a critical stance and suggested alternatives to the Korean court’s precedents, which were only intended to solve that subject matter under Article 109 of Korean Civil Code.