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The Expanded Debate on Defect Concept in Civil Law - Focusing on legal principles examination of so-called psychological defect concept -

  • DONG-A LAW REVIEW
  • 2018, (80), pp.79-104
  • DOI : 10.31839/DALR.2018.08.80.79
  • Publisher : The Institute for Legal Studies Dong-A University
  • Research Area : Social Science > Law
  • Received : July 9, 2018
  • Accepted : August 20, 2018
  • Published : August 31, 2018

SONG YOUNGMIN 1

1동아대학교

Accredited

ABSTRACT

This thesis examines so-called psychological defect concept that is being debated in Japanese precedents and theories. Psychological defect is the concept that reflects the negative psychological reaction to the object as itself defect by the information about the object. Psychological defect, if considering as defect warranty obligation, also has the problem about the requirement and effect of contract cancellation and damage compensation, and this kind of defect causes the problem whether subjective defect or objective defect. The characteristic of psychological defect, different from physical defect, would appear by legal assessment, and its damage would not appear as concrete form such as decrease of exchange value and utility value. In addition, these problems should be examined and judged individually by concrete issues, and the conclusion cannot be drawn deductively by rebuilding the psychological defect concept. Defect warranty obligation, if it is viewed as liability of default for the seller and prevention of equivalence imbalance for the object, would be admitted in case that the residence suitability lacks so much as equal to physical defect, nevertheless psychological defect considered as new scope by expansion phenomenon of defect concept. The effect of defect warranty obligation would be judged as the case of admitting contract cancellation by lack of residence utility or its extent, the case of limiting as damage compensation and the case of not admitting even damage compensation. Korean Civil Law has no substantive enactment about defect concept, and it caused a limit to apply Civil Law Clause 580, 581 on defect warranty obligation for the object. The conflict on psychological defect for the object would increase as much as physical defect for the object due to the demand for improving the quality of life. Furthermore, the issue whether the agent has the explanation obligation for the psychological defect of the object or not should be the task to be examined.

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