보증(保證)의 성립(成立)에 관한 프랑스의 법리(法理) - 법적(法的) 거래(去來)에서 서면(書面)의 의미(意味)에 대한 일고(一考) -
Formalism in the French Guarantee Contract Law

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서울대학교 법학연구소
법학, Vol.48 No3 pp.77-100
프랑스민법보증의 방식서면주의완화된 방식주의소비자보호Civil Law, Formality in Guarantee ContractAttenuated FormalismConsumer ProtectionWritten EvidenceVerbal Evidence
This article aims to supplement the other one on guarantee contract, which I
wrote a few years ago, working as a member of the Committee for Revision of
the Civil Code installed in the Ministry of Justice in 1999. At that time the
Committee considered, among other things, introducing formality of written
document for validity of guarantee contract to the Korean Civil Code. As a
reporter on the subject of guarantee contract, I made comparative research on the
guarantee laws of the major foreign countries in continental Europe, and
published the results of the research as a part of an atrticle of essentially de
lege ferenda character. Very recently, so some years after I had my paper on
that matter published, I found the information on the French law in that paper
very insufficient and it was likely to give a distorted picture about the functions
that written document might perform in the French law of guarantee contract, a
major figure of personal security in France.
What I missed in the previous paper was Art. 1326 C.c., which provides that
all the unilateral contracts, to which guarantee contract belongs without any
doubt, are in principle required to be proved by written documents. This article
tries to explain the meaning of the provision in its historical context and to cast
light on the French courts’ experiments with Art. 1326 C.c. as a tool for the
consumer protection.
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College of Law/Law School (법과대학/대학원)The Law Research Institute (법학연구소) 법학법학 Volume 48, Number 1/4 (2007)
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