독일과 프랑스의 민법상 정보제공의무에 관한 연구

The duty to disclose information in modern contract law is recognized as an important mechanism for balancing the principle of freedom of contract with the order of fair transactions. Since the enactment of Article 436-2 of the Civil Code in 2015, Korea has not introduced any additional legislation addressing the pre-contractual duty to disclose information under civil law. Although various special statutes—such as the Framework Act on Consumers, the Electronic Commerce Act, and the Installment Transactions Act— sporadically impose duties to disclose information, these laws suffer from regulatory fragmentation and a lack of consistency. Furthermore, they fail to provide protection for the weaker party in information in contractual relationships that fall outside the scope of these special statutes. The Korean Supreme Court has addressed violations of the duty to disclose information by relying on existing institutions in civil law—such as mistake, fraud, and tort—but this approach paradoxically places a strict burden of proof on the weaker party in information. In contrast, Germany, through its 2002 civil law reform, introduced liability for culpa in contrahendo and incorporated numerous provisions from special statutes, thereby establishing a coherent regulatory framework for pre-contractual duties to disclose information. France, in 2016, introduced a comprehensive pre-contractual duty to disclose information applicable to all private contracts, codified as Article 1112-1 of the Civil Code— a general provision directly aimed at protecting the weaker party in information. Considering the structure of European contract law, which traditionally emphasizes the principle of freedom of contract, the French model—characterized by direct regulation through a general provision—may be seen as a more progressive legislative approach than the German model, which regulates such duties indirectly through the concept of culpa in contrahendo. Moreover, France achieves the dual legislative goals of protecting vulnerable parties and ensuring transactional order by strictly defining the limiting conditions in Article 1112-1 to prevent the indiscriminate expansion of disclosure duties. This study seeks to contribute to the ongoing discussion on the revision of Korean civil law, which still lacks specific legislative measures to redress harm suffered by the weaker party in information due to violations by the stronger party. To this end, this paper first clarifies the definition of the duty to disclose information, distinguishes it from related legal concepts, and outlines the criteria and effects associated with its application. It then examines the legislative developments in German civil law before and after the 2002 reform, including the jurisprudence of the BGH, and reviews Article 1112-1 of the French Civil Code, along with relevant decisions by the Court of Cassation.