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) -

Abstract

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.