교환의 상호성과 계약 혹은 계약법의 규범적 근거로서 공동선

With the remarkable advancement of artificial intelligence (AI) technologies, Korean society is undergoing profound transformations across political, economic, and social domains. This phenomenon has led many to refer to the present era as “the age of artificial intelligence.” Such developments are also reflected in the field of contract and contract law, where numerous studies have recently addressed issues related to AI. The major points of contention in these discussions include the legal validity of declarations of intent made through AI systems, and the applicability of fundamental principles such as freedom of contract and private autonomy to AI-assisted agreements. However, these debates generally presuppose the modern legal concept of contract, defined as a legal act established by the concurrence of two or more declarations of intent aimed at producing specific legal effects. Although the development of science and technology, particularly AI, has introduced new challenges—such as informational asymmetries and digital vulnerabilities among contracting parties—these problems ultimately stem from the inherent limitations of modern contract law and do not fundamentally alter its normative character. Nevertheless, it is difficult to justify the normativity of contract and contract law solely on the basis of the theory of will, especially when considering issues of liability attribution and distribution arising from AI-based contracting under the principles of contractual freedom and private autonomy. Accordingly, this study seeks to reconsider the nature of contract and its normative foundations within the framework of the capitalist economic order. To achieve this, it first offers a critical review of the dominant theories of contract law. It then examines the concept of “exchange” as the essential act constituting a contract, drawing upon Ian Macneil’s relational approach. Based on this perspective, the study explores how reciprocity in exchange and social solidarity contribute to the formation of trust within the community. Finally, by engaging with Morris Cohen’s view that the normative foundation of contract and contract law lies in the common good or public interest, this paper aims to propose an alternative understanding of the normative grounds of contract and contract law.