착오로 인한 취소와 손해배상책임- 착오에 관한 제109조 개정안과 관련하여 -

The current civil law provisions on mistakes in Article 109 recognize the cancellation by the person making the mistake, but do not stipulate the responsibility of the person making the mistake to compensate the other party. Some academics take the position that it is reasonable to deny the responsibility of the person making the mistake to compensate the other party based on the intention of the legislator. However, the intention of the legislator at the time of enactment of the civil law was formed based on incorrect information about the legislative process of Germany and the current provisions, which were important comparative law materials referenced in the legislation. If there had been a thorough comparative law investigation, provisions regarding compensation for damages due to the cancellation by the person making the mistake would have been established, just like in the case of Germany. In such a situation, a way to protect the other party of the person making the mistake should have been found through interpretation theory, but the Supreme Court, like some academics, does not recognize the responsibility of the person making the mistake to compensate the other party. In this situation, the Civil Law Revision Committee under the Ministry of Justice announced a revision bill for the civil law in 2024. According to this amendment, if there is a need to protect the other party of the person making a mistake, that is, if the other party was unaware of the situation of the mistake of the person making the declaration and there was no fault on the other party, the right of cancellation of the person making a declaration of intention is excluded. However, this amendment violates the principle of private autonomy because it determines the validity of the declaration of intention entirely based on the other party’s trust, not the true intention of the person making the declaration of intention. While acknowledging the principle of private autonomy, it is reasonable to recognize the right of cancellation due to a mistake in order to protect the other party of the person making a mistake, but to require the other party to compensate for the benefit of trust. In this case, the liability for damages should be viewed as having the nature of contractual liability. Since a duty of care arises toward the other party during the process of concluding a contract, even if the contract is not validly concluded, this liability for damages has the nature of responsibility for one’s own promise in relation to the contract.