Each of your written works should not exceed 2 pages of an A4 size sheet.
Completed work must be uploaded at https://lawlec.korea.ac.kr/essay/

**IMPORTANT**

If you use ChatGPT (even partially), you must disclose that your work was assisted by ChatGPT.

I myself have already run the following questions (and several variants of these questions) in ChatGPT so I already know what kind of (inadequate) responses are provided by it.

Ancient Chinese Law and Philosophy (ACLP)

[ACLP Assignment No. 1]

“Are we bound by law?”

In preparing your written work, please consult:

Joseph Raz, “The Obligation to Obey: Revision and Tradition”, 1 Notre Dame J.L. Ethics & Pub. Pol’y 139 (1985). (Full text available at HeinOnline, which is accessible from the KU Library website)

You should also take into account of the following:

The Master spoke of Gong Ye Chang (公冶長): “He is marriageable. Although he was imprisoned, it was not his fault.” The Master gave his daughter to him in marriage. (Lunyu 5.1)

Due date: 17 November 2024, 23:00

[ACLP Assignment No. 2]

Discuss the following passage from Lunyu:

Duke of She (葉公) told Confucius, “In my village, there is an honest person. When his father stole a sheep, he testified as a witness.” Confucius said, “In my village, honesty is different. Father’s deed may be covered up by the son. Son’s deed may be covered up by the father. Honesty can also be found there.” (Lunyu 13.18)

In preparing your written work, please take into account the classroom discussion and compare it with H Rosement, R Ames, “Family Reverence (xiao 孝) as the Source of Consummatory Conduct (ren 仁)” Dao, Vol. 7, No. 1, 9-19

Due date: 5 December 2024, 23:00

핵심교양: 법철학과 유가사상

기말시험은 6월15일 목요일 오후2시에 강의실(교양관 605호)에서 실시합니다. 자신이 소지하는 모든 자료 참조 가능합니다(온라인 자료 포함, 노트북, 태블렛 등 지참 가능)(오픈북 시험).

과제물 제출 일정은 다음과 같습니다.

• 과제물의 분량은 A4 용지 2면 이내.
• 제출방법은 https://lawlec.korea.ac.kr/essay/ 에서 직접 업로드
• 제출 기한: 과제 [1]은 5월16일 23:00, 과제 [2]는 5월30일 23:00 까지

[과제1]

법의 구속력과 강제력에 대하여 설명하라.

[과제2]

논어의 첫 귀절 “學而時習之，不亦說乎?” (學而 1.1)에 대해서는 “배우고 때로 익히면 즐겁지 아니한가?”라는 해석과 “배우고, 적절한 때에 그걸 실천하면 기쁘지 않겠나!”라는 해석이 가능한데, 이 두 해석 간의 차이점을 설명하라.

법학전문대학원: Korean Contract Law I

End-term examination will be held on 15 June at 10:30. You may consult all materials that are in your possession, including online materials (Open book examination).

Written works should be handed in as follows:

• Your written work should not exceed 2 sides of an A4 sheet.
• Completed written work must be uploaded at https://lawlec.korea.ac.kr/essay/
• Deadlines for the written works:
  • Assignment 1 must be handed in by 23:00 on 16 May.
  • Assignment 2 must be handed in by 23:00 on 30 May.

[Assignment 1]

Alice made an offer to Bob to sell her house in Seoul at the price of 360 million KRW. Alice’s offer reached Bob on 24 March 2016. Bob took time to make up his mind. Bob sent the following email to Alice on Sunday 10 April at 11:32 am:

Dear Alice,

I have thought long and hard about your offer. Much as I would have hoped that you would offer a better price considering the deplorable state of maintenance (or lack thereof, rather) of the house, I decided to take it. Let’s meet up next week to sort out the deposit payment of 36 million KRW (which is 10% of the contract price) and other details of the transaction.

Regards,

Bob

However, Alice’s email server was experiencing a technical problem at the time and Bob’s message could not be delivered to Alice’s email account immediately. Bob’s email server was holding the message and it kept trying to deliver the message.

On the same day, however, Alice telephoned Bob at 11:45 am (without knowing anything about Bob’s email message) to tell him that she would be happy to make a better offer. She told Bob that she would agree to sell the house at 320 million KRW. Bob was happy to hear the good news and immediately agreed to buy the house at 320 million KRW. Bob did not say anything about the email because he simply assumed that Alice had read it when she telephoned.

Bob’s email was delivered to Alice on Monday 11 April 2016 at 9:42 am. When Alice opened her emails later that day, she realized that Bob’s email was sent before she telephoned him on Sunday morning. Alice was upset that Bob did not tell her about the email when they were speaking on the phone. Alice now insists that the contract price must be 360 million KRW. Bob was indignant because Alice changes her mind all the time. Bob insists that a new offer was made and it was accepted at the contract price of 320 million KRW.

Discuss how the dispute must be resolved.

[Assignment 2]

Viva Hospital (“Viva”) is a registered non-profit corporation licensed by the Minister of Health. Viva’s Memorandum of Incorporation stipulates that contracts which are worth more than KRW 1 billion must be approved by Viva’s founder, Dr. Chang.

Mr Bean is a director of Viva. On behalf of Viva, Mr Bean concluded a contract with Ms Kim at the price of KRW 1.5 billion to purchase a plot of land from her in order to have the new cancer research laboratory built on it. Mr Bean forged Dr Chang’s letter of approval for the contract and gave it to Ms Kim together with Viva’s Memorandum of Incorporation. The contract also has a provision where Mr Bean represented that the contract is in full compliance with Viva’s MOI and that Mr Bean has the full authority to conclude the binding contract on behalf of Viva.

Dr Chang discovered this transaction and claimed that the contract is null and void. Ms Kim insists that she was in good faith and that Viva cannot now disavow a contract which was executed by its director.

Discuss how this dispute must be resolved.

1. When Confucius was in his home town, he was simple and meek. It looked as if he could barely speak. When he was in an ancestral temple or in a court, he spoke fluently without hesitation. But he was respectful.
孔子於鄉黨，恂恂如也，似不能言者。其在宗廟朝廷，便便言，唯謹爾。

2. In court, speaking to counsellors junior to him, he was frank and straightforward. With counsellors senior to him, he would debate cordially and courteously. When the ruler was present, he was polite and cautious. He was also austere and poised.
朝，與下大夫言，侃侃如也；與上大夫言，誾誾如也。君在，踧踖如也。與與如也。

3. A ruler may ask him to receive a guest. When the guest arrives, he would wear a solemn face and tap the floor tile with his foot as a sign of respect. He would greet the guest from where he stood by joining his two hands at his chest. Before as well as after the greeting, his costume was neatly maintained. He would then move forward on his toes in quick steps like a fluttering bird. After the guest has left, he would always report back saying, “The guest has left without looking back.”
君召使擯，色勃如也，足躩如也。揖所與立，左右手。衣前後，襜如也。趨進，翼如也。賓退，必復命曰：「賓不顧矣。」

4. When entering the gate of a government office, he would always bend himself, as if the gate was not big enough. He would not stand in the middle of the gate. While entering the gate, he would not step on the threshold. When passing by a place housing ancestral tablets, he would wear a solemn face, tap the floor stone with his foot as a sign of respect and his speech would become like that of a feeble man. He would then hold the hem of his lower garment and climb up to the place, bending himself and holding his breath almost as if he was not breathing. Coming out from the hall, as soon as he laid his foot on the first step, he would unwind. One could tell from his face that he was contented and elated. Having come down to the last step, he would respectfully move on in quick steps on his toes,
like a fluttering bird. When he re-passes by the place, he would be at ease and uninhibited.

入公門，鞠躬如也，如不容。立不中門，行不履閾。過位，色勃如也，足躩如也，其言似不足者。攝齊升堂，鞠躬如也，屏氣似不息者。出，降一等，逞顏色，怡怡如也。沒階趨進，翼如也。復其位，踧踖如也。

5. When holding the jade insignia, he would bend himself, as if it was too heavy to hold. In receiving it from his superior or passing it to his subordinate, he would wear a face of trepidation. While he was holding the insignia, he would walk without lifting his heels from the ground, as if he was being carried away effortlessly. During sacrificial ceremonies, he looked like an expert in rituals and music. In private audience, he was jovial and congenial.

執圭，鞠躬如也，如不勝。上如揖，下如授。勃如戰色，足蹜蹜，如有循。享禮，有容色。私覿，愉愉如也。

6. Our noble man avoided deep purple and orange in decorating the lapels of his coat. Red and violet were not used for his daily wear. In hot weather, he would wear an unlined jacket made of ramie. But he would always put on an outer garment over it before going out. Over a dark costume, he would wear a black lamb skin coat; over a white costume, he would wear a deer skin coat; over a brown costume, he would wear a fox skin coat. His usual skin coats were long except for the right-hand sleeve, which was cut short. He would always wear pyjamas when he went to bed. They were half his length. Fox and mink fur was used to give a full padding to his bedding. When the mourning period was over, he would wear decorations without restriction. With the exception of the prescribed courtly wear, he would always tailor down his clothes to fit him. Wearing a black lamb skin coat and black hat, he would not attend a funeral. In the first month of the year, he would always wear the courtly costume and attend the court.

君子不以紺緅飾。紅紫不以為褻服。當暑，袗絺綌，必表而出之。緇衣羔裘，素衣麑裘，黃衣狐裘。褻裘長。短右袂。必有寢衣，長一身有半。狐貉之厚以居。去喪，無所不佩。非帷裳，必殺之。羔裘玄冠不以弔。吉月，必朝服而朝。

7. During purification, he would always rise at dawn, put on his cloth and say the sidereal prayer. During purification, he would always be on a special diet and stay in a different room.

齊，必有明衣，布。齊，必變食，居必遷坐。

8. He would prefer finely milled rice and thinly sliced meat. When the rice turned bad and began to have a funny taste, when the fish smelled slightly fishy, when the meat was a bit off, he would not eat. When the food was discoloured, he would not eat. When it smelled bad, he would not eat. When it was not piping hot, he would not eat. When it was not served at the right time, he would not eat.
When the food was not cut to the proper shape and size, he would not eat. When it was not accompanied by the right sauce, he would not eat. Even when meat was there in plenty, he would not let his appetite win over him. But he drank like a whale. He would not, however, go out of control. Purchased wine and dried meat from a market, he would not touch. He did not mind spicy food but he would not have it too much. After a sacrificial ceremony in a government office, he would not keep overnight the give-away meat. The meat used in a sacrificial ceremony at home, he would not keep it for more than three days. After three days, he would not eat it. While eating, he would not have long conversations. In bed, he would keep quiet. Even when he only had coarse rice and vegetable soup, he would set aside some of them for the spirits. He was always solemn when he did this.

食不厭精，膾不厭細。食饐而餲，魚餒而肉敗，不食。色惡，不食。臭惡，不食。失飪，不食。不時，不食。割不正，不食。不得其醬，不食。肉雖多，不使勝食氣。惟酒無量，不及亂。沽酒市脯不食。不撤薑食。不多食。祭於公，不宿肉。祭肉不出三日。出三日，不食之矣。食不語，寢不言。雖疏食菜羹，瓜祭，必齊如也。

9. If the cushions were not properly laid out, he would not sit.

席不正，不坐。

10. While drinking with the local people, only after the senior member has left would he also leave. When the local people were having a ritual to fend off a plague, he would wear his courtly costume and stand at the east side of the step.

鄉人飲酒，杖者出，斯出矣。鄉人儺，朝服而立於阼階。

11. When he was sending a man to a different country, he would bow twice and see him off. Lord Ji Kang sent him some medicine. He bowed and received it. Then he said, “Qiu is not equal to this. I dare not taste it.”

問人於他邦，再拜而送之。康子饋藥，拜而受之。曰：「丘未達，不敢嘗。」

12. His stable was burnt down. He came home from the court. He said, “Was anybody hurt?’ He did not ask about the horse.

廄焚。子退朝，曰：「傷人乎？」不問馬。

13. If a ruler sent him a dish, he would always correct his posture and have a taste of it first. If a ruler sent him raw meat, he would always cook it and eat it while it is hot. If a ruler sent him a live animal, he would always raise it. In attendance during a meal of a ruler, the ruler would set aside some food for the spirits first and then he would also eat. During serious illness, when the ruler was coming to see him, he would lay his head to the east and place the courtly costume on him and tie it with the belt. If a ruler summoned him, without waiting for the carriage to be harnessed, he would set off.

君賜食，必正席先嘗之；君賜腥，必熟而薦之；君賜生，必畜之。侍食於君，君祭，先飯。疾，君視之，東首，加朝服，拖紳。君命召，不俟駕行矣。

14. When he was inside the Grand Temple, he would ask about everything.

入太廟，每事問。

15. A friend died. But the deceased had been homeless. He said, “Bring the corpse in my house for a funeral.” If it was a friend who sent him a gift, even though it might be a carriage or a
horse, as long as it was not the give-away meat used in a sacrificial ceremony, he would not bow.

朋友死，無所歸。曰：「於我殯。」朋友之饋，雖車馬，非祭肉，不拜。

16. He did not sleep like a corpse. But he did not live in extravagance. If he saw that a man was in a mourning period, even though he knew him very well, he would invariably wear a solemn face. If he saw a man wearing the funeral cap or a blind man, even if the man was in a rag, he would always correct his posture. To those who were press-ganged to hard labour, he showed respect. He paid respect to those who were heavy laden. When he was served with an elaborate meal, he would always show a sign of astonishment and stand up. When there was a big lightening or a violent gale, he would invariably change his face.

寢不尸，居不容。見齊衰者，雖狎，必變。見冕者與瞽者，雖褻，必以貌。凶服者式之。式負版者。有盛饌，必變色而作。迅雷風烈，必變。

17. In climbing onto a carriage, he would always keep himself upright and hold the rope. Once in the carriage, he would not look around inside, he would not tell the driver to go fast, he would not point his finger at things.

升車，必正立執綏。車中，不內顧，不疾言，不親指。

18. Alarmed by people, the birds flew up. After circling around, they came down and gathered together. The Master said, Female pheasants in the mountain! It’s the right time! It’s the right time!” Zi Lu served the bird to the Master. The Master sniffed the dish three times, then he rose.
色斯舉矣，翔而後集。曰：「山梁雌雉，時哉！時哉！」子路共之，三嗅而作。

Guan Zhong (管仲; ca. 720BC-645BC) was the minister who assisted Duke Huan of Qi so that the State of Qi became the leading state (hegemon) during the Spring and Autumn Period of ancient China. But Confucius apparently had harsh things to say about him:

“Guan Zhong is a man of small calibre! (관중은 쪼잔해! 管仲之器小哉！)” (八佾 3.22)

Someone asked clarification.

“You mean, he was frugal? 管仲儉乎？”

Confucius did not mince his words. He made scathing remarks about Guan Zhong’s staggering wealth. According to Confucius, Guan Zhong did not know Li 禮 either.

He had three residences, each complete with a full array of domestic staff. How could he be frugal? Only a ruler can have a gate screen. But Guan Zhong had one. Only when a ruler entertains another ruler, can he have a cup stand. But Guan Zhong had a cup stand. If he knew Li, who didn’t?

However, regarding the question of ethical integrity (仁), Confucius shows a very interesting response. Was Gaun Zhong a man of ethical integrity? That was the question posed by Confucius’ students.

Zi Gong said, “Guan Zong lacked ethical integrity, did he not? When Duke Huan of Qi had his brother Jiu killed, Guan Zhong was unable to commit suicide. He instead served Duke Huan as his minister.” (憲問 14.17)

Jiu was the elder brother of Duke Huan. Guan Zhong was originally serving Jiu. When there was an armed conflict between brothers who were competing for the throne of Qi, Guan Zhong attempted to assassinate Duke Huan. But the attempt was unsuccessful and Jiu had to flee to a neighbouring state. When Duke Huan eventually came to the throne of Qi, he put pressure on the ruler of the neighbouring state (who harbours Jiu) to have Jiu killed. Jiu was duly killed and his body was pickled and presented to Duke Huan. When a ruler is killed, it was ‘appropriate’ and perhaps ‘ethical’ for his minister such as Guan Zhong to commit suicide. For instance, minister Shao Hu who had been serving Jiu committed suicide when Jiu was killed. But Guan Zhong not only not killed himself but somehow enlisted the help of his close friend Bao Shuya ( 叔牙鲍 ) who was an aide to Duke Huan. Bao recommended Guan Zhong to Duke Huan and Guan Zhong became his minister. Guan Zhong must have had a superbe skill of winning the mind of his former enemy. Zi Gong, however, denounces Guan Zhong’s apparent lack of ‘ethical integrity’. However, Confucius replied as follows:

Guan Zhong acted as prime minister to the duke Huan, made him leader of all the princes, and united and rectified the whole kingdom. Down to the present day, the people enjoy the gifts which he conferred. Without Guan Zhong, we should now be wearing our hair unbound, and the lappels of our coats buttoning on the left side. Will you require from him the small fidelity of common men and common women, who would commit suicide in a stream or ditch, no one knowing anything about them? (憲問 , 14.17)

Zi Lu asked a similar question. Confucius’ reply was even more definitive.

When the duke Huan caused his brother Jiu to be killed, Shao Hu died with his master but Guan Zhong did not die. May not I say that he was lacking ethical integrity?
The Duke Huan assembled all the princes together without even using weapons of war and chariots – it was all through the influence of Guan Zhong. Have ethical integrity like him! Such ethical integrity as his! 子曰：「桓公九合諸侯，不以兵車，管仲之力也。如其仁！如其仁！」 (憲問, 14.16)

There is another passage where Confucius extols Guan Zhong’s great virtue.

Someone asked about Zi Chan. Confucius replied. ‘He was kind.’ Someone asked about Zi Xi. Confucius said, ‘Oh dear, don’t ask me about him. Not him!’ Someone asked about Guan Zhong. Confucius said, ‘A great man, indeed. He grabbed the town of Pian which had three hundred households from the Bo family. The villagers only managed to have coarse meals, but no one had bad feelings until the end (even when they had no teeth from old age).’(憲問, 14.9)

What then? All is well that ends well? The end justifies the means? All is forgiven as long as you get the result? Definitely not! There are simply too many passages where Confucius emphasised that the process counts, rather than the result. Even if you cannot hope to have a result, you must nevertheless endeavour in all earnest.

Ethical integrity, morality is far more complex. It cannot be simply explained in black on white. It is certainly not a matter of some “inflexible” principle. It is not something that can be approached from dogmatic or absolute terms.

A good deal of common sense and flexibility would put you on the right path, provided that you have the right training and the right frame of mind – provided also that you have the determination to improve yourself constantly.

Original text

[Duke of Zhou] spoke thus: Lord of lords, my younger brother Feng! Our illustrious father the late King Wen (文王) has shown splendid virtues and prudently applied punishments (明德慎罰). He dared not despise widows and widowers. He employed the employable, respected the respectable. He was fearsome against the feared. He shined in the eyes of the people. He thus started our area, then it grew beyond our one or two regions and this is how we came to rule our western territory. All this while, he diligently sought counsel from the Lord Above (上帝) and the Lord was pleased. Heaven therefore ordained King Wen to conquer the Yin. The heavenly mandate reached its territory and its people. They are provided for at the moment. Your humble elder brother (Duke of Zhou) made some efforts and thus you are here in this eastern territory.

Oh, Feng, keep this in mind. Whether these people will remain reverent would depend on whether you take the example of the late King Wen and follow his virtuous words (德言). Please do a comprehensive study of earlier sage kings of Yin so that you can govern these people well. You should uphold the teachings of Shang elders so that you can win their heart and know what to teach them. You should specially seek counsel of the ancient sage kings so that you make people prosper and protect them. When your virtues are great enough to reach the sky, you will not be cast away in the execution of the king’s commands.

My little brother Feng! Feel the pain of the people as if it is your own. Be mindful of the Heaven. Fearful as it may be, Heaven helps those who are sincere. You can see the public opinion in its broad outline, but it is difficult to retain small men. When you are there, give all your heart. Do not indulge in leisure and pleasure. Govern people instead. I heard thus, “Grievance does not arise from abundance or shortage; it arises from lack of principle in giving rewards and lack of the ruler’s efforts.”

It is true, my little brother, you must ensure that the Yin people are well protected and that they obey the king. You must assist the royal house in fulfilling the Heaven’s mandate by renovating these people (作新民).

Oh, Feng, please be cautious and transparent in applying punishments (敬明乃罰). Suppose a person commits a small crime. If it is not a mishap but an intentionally committed violation of the rules, then the law is that — even though the crime may be small — he cannot but be put to death. On the other hand, even though the crime is great, if it was not intentionally committed but a disastrous mishap, then the equity is that — if the person has already fully admitted its fault — he shall not be put to death.

Oh, Feng, if these are properly done, people will obey splendidly. They will regulate themselves and strive for harmony treating the misdeed as if it is a disease. They will abandon their evil deeds. Protect them as if they are your own babies. They will prosper and be orderly. It is not you, Feng, who punish or execute people. Do not punish or execute them arbitrarily. It is not you, Feng, who cut the nose or ears of the people. Do not arbitrarily cut people’s nose or ears.

When ‘external’ affairs are presented to you, let the appropriate legal officer (臬司) deal with them according to the punishments of Yin which stand to reason. When interrogating a prisoner, reflect for five, six or upto ten days before making the definitive decision. When legal officer pronounces the punishments in the proceedings you supervise, make sure that they are in accordance with the Yin law and the punishment and the execution are just. Do not use them to suit your personal feelings, saying, “I think this is proper”, “I think this is not in order”. [It is true, Feng, you are young. There is no one who has a heart like yours. You know my heart and my virtue.]

Those who commit the crime of robbing, stealing, treachery, killing, laying hands on other’s goods or committing violence without fearing one’s life, are to be abhorred. But the greatest evil to be abhorred all the more is lack of filial piety and brotherly love. The son who does not serve his father with respect, but greatly hurts his father’s heart; the father who does not love his son, but hates him; the younger brother who does not think of Heaven’s brightness, and does not respect his elder brother; the elder brother who does not have compassion for his tender younger brother, and treats him coldly and suppress him: if we do not deal with the people who commit these crimes, the law which our people have received from the Heaven will be greatly annihilated and disturbed. This is why these conducts need to be constrained. They must have the punishment or execution as set down by King Wen without pardon.

When the great command is disobeyed; moreover, when junior lords, village chiefs, their deputies and minor officers sent out [to Yin] entrusted with power give commands arbitrarily and cause havoc; and when people in general, without scruple and without diligence, plague their ruler, evils arise. And I abhor them. This is why you need to deal with them and put them to death in accordance with rightness.

Also, when the ruler and the heads cannot manage to control their own family members and when their small officers and retainers cause terror and commit cruelty, that is to greatly abandon the king’s commands and to use punishments without virtue (非德用乂). You too must never fail to uphold the law and make people happy just as King Wen made them happy through his cautious reverence for the law. Having made the people happy, if you can say, “I made it”, I shall be happy.

Feng! people should be guided by auspiciousness and happiness. Use the virtue of earlier sage kings of Yin and seek to govern people well. It is not right to lead people astray. If people do not follow your lead, then there is no government in that country.

Feng! I cannot but reflect upon and tell you these virtuous sayings about administration of punishments (德之說于罰之行). At the moment, the people are not quiet. A lot of them have not made up their mind to follow us. They have not yet become one with us. Only Heaven will punish those who kill us. We should not blame them as long as their crimes are not with their magnates, are not widespread. It is said, “If it is manifest, it will be heard in Heaven.”

Oh, Feng! Be cautious and respectful. Do not cause grief. Do not use bad counsel, do not follow the crooked way. Please practice virtue diligently. Have firm resolve. Scrutinise your own virtue. Have a grandiose plan. Be generous to the people to bring them comfort. Then I shall have no occasion to blame you or to remove you.

Oh, my little brother Feng! Our mandate is not permanent. You must remember it. Do not make me remove you. Obediently carry out the mandate clearly. Uphold what you heard from me. Govern people well.

Go, Feng! Do not ruin the revered law. Listen to my advice. You will then be venerated by Yin people generation after generation.

The fundamental rule of contract interpretation is that contractual language must in principle be given effect as it is written. The Korean Supreme Court (the highest court in Korea for civil and criminal matters) has consistently ruled as follows:

Once the court is satisfied with the authenticity of the contractual document, the court must, in the absence of clear and convincing evidence to deny what is written, recognise the existence and the content of the parties’ intent as it is written on the contractual document. (Supreme Court Judgment 2002Da23482 dated 28 June 2002)

The importance of contractual language is further emphasised as follows:

In interpreting a contract, if the parties’ true intent is not knowable, the interpretation should be based on the intent inferred from outward expressions rather than the intent inside the parties’ mind because what constitutes the contractual intent is the intent inferred from expressions, i.e., the expressed intent, rather than the intent which was held in the parties’ mind.²

2Ibid.

The Supreme Court also ruled that “contract interpretation aims to establish clearly the objective meaning the parties assigned to the expression. While the court is not always constrained solely by the language chosen by the parties, the court’s task is nevertheless to base itself on the contractual language and to interpret reasonably the objective meaning which the parties assigned to the expression regardless of what the parties might have entertained in their mind.”³

If the objective meaning is unclear from the language of the contract, the Supreme Court has given guidance as follows: “when the court has to interpret the intent of the parties because there is a difference of views as to the interpretation of the contract, the interpretation must be done reasonably in accordance with logic and rules of experience, taking account comprehensively of the textual content, motives and circumstances leading to the agreement, the aim and purpose which are to be achieved by the agreement as well as the parties’ true intent.”⁴The Supreme Court has also held that the interpretation must be consonant with the notions of justice and equity as well as the common sense of the general public and the ordinary commercial understanding.⁵

3Supreme Court Judgment 2000Da40858 dated 23 March 2001. Also see Supreme Court Judgment 2002Da23482 dated 28 June 2002.

4Supreme Court Judgment 93Da32668 dated 25 March 1994; Supreme Court Judgment 96Da1320 dated 9 April 1996. Similar rulings are repeated in a number of cases. For example, Supreme Court Judgment 92Da47236 dated 24 August 1993. The “rules of experience” mean rules derived from the experience of living in society (사회생활에 있어서의 경험 법칙).

5Supreme Court Judgment 2008Da90095, 90101 dated 14 May 2009.

1. The Night Sky

• The Master said, “To govern with virtue is like being the Pole Star. You stay put and all the stars venerate you.” 子曰：「為政以德，譬如北辰，居其所而眾星共之。」(2.1)
• Our illustrious father the King Wen greatly promoted virtue (德) and cautiously applied punishments (罰).  惟乃丕顯考文王 克明德慎罰. 尙書, 康誥 2

2. Everything in its right place: 君君，臣臣，父父，子子

• The Master said, “Govern people with politics and align them with punishments, they will evade and have no shame. Govern them with virtue and align them with Li, they will have decency and things will be in the right place (格).” 子曰：「道之以政，齊之以刑，民免而無恥；道之以德，齊之以禮，有恥且格。」(2.3)
• Duke Jing of Qi asked about governing. Confucius said, “A ruler should be a ruler, a minister should be a minister, a father should be a father and a son should be a son.” The Duke said, “Lovely answer! Suppose a ruler is not a rule, a minister is not a minister, a father is not a father and a son is not a son, then even if there may be grains of millet, how can I eat them?” 齊景公問政於孔子。孔子對曰：「君君，臣臣，父父，子子。」公曰：「善哉！信如君不君，臣不臣，父不父，子不子，雖有粟，吾得而食諸？」

3. Proper punishments (刑之中)

• Pre-confucian sources:

  • If governing is done properly, people will obey.  有敘時 乃大明服 (尙書, 康誥 6)
  • With upright application of proper punishments, you should guide and govern people to make them splendid  故乃明于刑之中，率乂于民棐彝。(尙書, 呂刑 3)

• Analects:

  • Duke Ai asked, “What should I do to make people obey?” Confucius replied, “If you promote and employ the straight to grind out the crooked, people will obey. If you promote and employ the crooked to grind out the straight, people will not obey.” 哀公問曰：「何為則民服？」孔子對曰：「舉直錯諸枉，則民服；舉枉錯諸直，則民不服。」(2.19)
  • Zi Lu said, “Suppose the ruler of Wei recruits you and entrusts the governing. What will you do first?” The Master said, “I would rectify names, first of all.” Zi Lu said, “There you go. You’re always taking a long detour, aren’t you? How come rectifying names is your first priority?” The Master said, “How uncivilised you are! A noble man would remain quiet when it is about something he does not know. If names are not correctly used, your speech will be feigned. With a feigned speech, you cannot accomplish anything. If things are not accomplished, the Li and the Music will not flourish. If the Li and the Music do not flourish, punishments will not be properly administered. If punishments are not properly administered, people would not know where to stand. If a noble man should name names, he must be able to defend it. If he should say things, he must be able to act on it. When it comes to speech, a noble man ought not to talk nonsense.”
    子路曰：「衛君待子而為政，子將奚先？」子曰：「必也正名乎！」子路曰：「有是哉，子之迂也！奚其正？」子曰：「野哉由也！君子於其所不知，蓋闕如也。名不正，則言不順；言不順，則事不成；事不成，則禮樂不興；禮樂不興，則刑罰不中；刑罰不中，則民無所措手足。故君子名之必可言也，言之必可行也。君子於其言，無所苟而已矣。」(13.3)
  • Lord Ji Kang asked about governing. Confucius answered, “It is to make it upright. If you take the lead by being an upright example, who would dare to be crooked?” 季康子問政於孔子。孔子對曰：「政者，正也。子帥以正，孰敢不正？」(12.17)
  • The Master said, “A noble man cherishes virtue, a small man cherishes land. A noble man is mindful of punishment, a small man is mindful of benefit.” 子曰：「君子懷德，小人懷土；君子懷刑，小人懷惠。」(4.11)

• Post-confucian sources:

  • Through an upright application of punishments, let the people have the sense of shame. 以明刑恥之 (周禮, 秋官司寇 57)
  • Li does not reach down to the rank and file. Punishment does not reach up to the magnates. 禮不下庶人，刑不上大夫 (禮記, 曲禮上 68). ??
  • [When Confucius was appointed the Chief Law Enforcement Officer of Lu, he had executed a magnate Shao Zheng Mao (少正卯) on charges of corruption.] The words got around and a few months later, merchants selling pork or mutton did not try to rip off the customers; men and women used different sides of a road; no one touched lost or misplaced items in the street; and visitors from foreign countries obtained what they wanted from the officials without bribing them. (史記, 孔子世家 19)

4. xiao (孝) in the context of Zhou feudalism

• Master You said, “A person who loves his parents and brothers and yet loves to attack his superiors is hard to find. A person who does not love to attack his superiors and yet loves to start a rebellion is unheard of. A noble man will strive to get the basics properly done. When the root is solidly established, the Way will flourish. Respect for parents and affection for brothers are the root of ethical integrity.” 有子曰：「其為人也孝弟，而好犯上者，鮮矣；不好犯上，而好作亂者，未之有也。君子務本，本立而道生。孝弟也者，其為仁之本與！」(1.2)
• The Master said, “When your father is alive, you should observe what he intends. When he is dead, you should observe what he did. If you do not change your father’s way for three years, you can be called a dutiful son. 子曰：「父在，觀其志；父沒，觀其行；三年無改於父之道，可謂孝矣。」(1.11)
• Zi Zhang said, “In the Documents, there is a passage ‘Gao Zong did not speak for three years when his father died.’ What does that mean?” The Master answered, “Not only Gao Zong, but all rulers in olden days were like that. When a ruler dies, officials reported to the Prime Minister and the governing was done by the Prime Minister’s order. This continues for three years.” 子張曰：「《書》云：『高宗諒陰，三年不言。』何謂也？」子曰：「何必高宗，古之人皆然。君薨，百官總己以聽於冢宰，三年。」(14.40)

  • (史記, 殷本紀 23): When the Emperor Xiao Yi died, his son Wu Ding [=Gao Zong] was established as the new emperor. Emperor Wu Ding wanted to rejuvenate Yin but he could not secure his aides. For three years, he did not speak. He let the governing be done by the Prime Minister’s decisions and observed the trends of the country. 帝小乙崩，子帝武丁立。帝武丁即位，思復興殷，而未得其佐。三年不言，政事決定於冢宰，以觀國風

• Master Zeng said, “I heard the Master saying as follows: Lord Meng Zhuang’s love for his parents can be emulated by others. But he did not replace his father’s ministers and he did not change his father’s policies. That is difficult to emulate.” 曾子曰：「吾聞諸夫子：孟莊子之孝也，其他可能也；其不改父之臣，與父之政，是難能也。」(19.18)
• cf. Meng Zi’s misunderstanding: When a ruler dies, the new ruler would let the Prime Minister do the governing. The new ruler would eat porridge, his face dark with sorrow. He keeps wailing upon acceding to the throne.  Officials down to the lowest grade dare not fail to grieve. 君薨，聽於冢宰。歠粥，面深墨。即位而哭，百官有司，莫敢不哀 (孟子, 滕文公上 2)
• Confucius’ own remarks about mourning period:

  • Lunyu 17.21: Zai Wo asked about three year mourning period, saying “One year is long enough. If a noble man does not practice Li for three years, Li will be ruined. If music is not performed for three years, music will be lost. One year is long enough for old grains to be used up, new grains to ripen and the wood to make fire with a flint will have changed in a year.” The Master said, “Would you feel comfortable eating fine rice and wearing fine cloth [after one year of mourning]?” Zai Wo said, “Yes, I would.” The Master said, “If you feel comfortable doing it, then do it! When a noble man is in mourning, he would not feel the taste even when he has nice food, he would not feel joy even when he hears good music, he would not feel comfortable regardless of the dwelling. That’s why he does not eat fine rice or wear fine cloth. But if you feel comfortable doing it, then do it!” Zai Wo left. The Master said, “It shows Yu (予) lacks ethical integrity. When a child is born, it takes three years before it can leave the parents’ arms. Three year mourning is normally practised everywhere. Did Yu ever have the benefit of his parents’ love for three years?”

5. Honesty (直)

• Duke She (葉公) told Confucius, “In my village, there is a very honest person. When his father stole a sheep, he testified against it.” Confucius said, “In my village, honesty is different. A father may cover up his son’s deed. A son may cover up his father’s deed. Honesty can be there.” 葉公語孔子曰：「吾黨有直躬者，其父攘羊，而子證之。」孔子曰：「吾黨之直者異於是。父為子隱，子為父隱，直在其中矣。」(13.18)
• Duke She asked Zi Lu about Confucius. Zi Lu ignored him. The Master said, “Why didn’t you say that he is the kind of man who would forget about eating when he is outraged, forget his worries when he is happy and he does not know that old age will eventually get to him.” 葉公問孔子於子路，子路不對。子曰：「女奚不曰，其為人也，發憤忘食，樂以忘憂，不知老之將至云爾。」(7.19)
• Duke She asked about governing. The Master said, “If you make people near you happy, far away people will come to you.” 葉公問政。子曰：「近者說，遠者來。」(13.16)

What did Confucius say about honesty?

• One should live with honesty. If you live crookedly, all you can manage, if lucky, is to avoid being caught.” 子曰：「人之生也直，罔之生也幸而免。」(雍也 6.19)
• The Master said, “There are three types of helpful friends and three types of harmful friends. Honest friends, sympathetic friends and erudite friends are beneficial. Bigoted friends, slippery friends and silver-tongued friends are harmful.” 孔子曰：「益者三友，損者三友。友直，友諒，友多聞，益矣。友便辟，友善柔，友便佞，損矣。」 (季氏 16.4)
• Zi Zhang asked, “What should an officer do to become a successful person?” The Master said, “What do you mean by ‘success’?” Zi Zhang answered, “Renowned in the country, renowned in the family.” The Master said, “That is a renown. It is different from ‘success’. A successful person is honest in his substance and is fond of righteousness. He cautiously observes people’s speeches and appearances. He is considerate to people who are below him. Such a person is a success wherever he may be. A renowned person puts on an appearance of being ethical but his actions are against it. He remains and indulges in his position without self reflection. Such a person is bound to be renowned in the country and in the family.” 子張問：「士何如斯可謂之達矣？」子曰：「何哉，爾所謂達者？」子張對曰：「在邦必聞，在家必聞。」子曰：「是聞也，非達也。夫達也者，質直而好義，察言而觀色，慮以下人。在邦必達，在家必達。夫聞也者，色取仁而行違，居之不疑。在邦必聞，在家必聞。」(顔淵 12.20).
• When honesty is not in accordance with Li, it becomes a snare. 直而無禮則絞 (泰伯 8.2),
• When you cherish honesty and does not cherish learning, you end up in a straight jacket. 好直不好學 其蔽也絞 (陽貨, 17.8)
• Learning will make you overcome inflexibility.  學則不固 (學而 1.8)
• Zi Gong said, “Does a noble man also have hatred?” The Master said, “Of course. He hates those who speak ill of others. He hates those who live a lowly life and slander superior people. He hates those who have courage and yet fail to abide by Li. He hates those who are bold and yet have a closed mind.” The Master then said, “Ci (賜), do you also have hatred?” Zi Gong replied, “I hate those who beat around the bush and treat it as wisdom. I hate those who are rude and think that they are courageous. I hate those who rat on others and think that they are honest.” 子貢曰：「君子亦有惡乎？」子曰：「有惡：惡稱人之惡者，惡居下流而訕上者，惡勇而無禮者，惡果敢而窒者。」曰：「賜也亦有惡乎？」「惡徼以為知者，惡不孫以為勇者，惡訐以為直者。」 (陽貨 17.24)

6. Mencius (372-289 BCE), Warring States Period (475-221 BCE), “xiao (孝) fundamentalism”

• Emperor Shun (舜) (legendary, 2294-2184)
• His father Gu Sou (瞽瞍)
• Justice Minister Gao Yao (臯陶)
• Gu Sou commits a murder and is arrested. Shun smuggles out Gu Sou. Shun and Gu Sou escape to a seaside town and they live happily ever after.
• Ethical Black Hole (孟子, 盡心上 35; 萬章上 1-3)

Xiao, Ti (孝, 弟) and their limits

• Zi Gong asked, “What qualities are needed to be regarded as an officer?” The Master said, “When you have a sense of shame in your conduct and when you do not put your ruler’s commands into disrepute wherever you are sent on a mission, you can be regarded as an officer.” Zi Gong said, “May I ask what kind of persons come next?” The Master said, “Those who are praised by family members for serving parents well and those who are praised by townspeople for being kind-hearted.” Zi Gong said, “May I ask what kind of persons come next?” The Master said, “Those whose speech is trustworthy and who get things done. Although they may have stubbornness of the petty and the lowly, they can come next.” Zi Gong said, “How about those who are in the government these day?” The Master said, “Oh, dear! Those small minded people, there are too many to count.” (子路 13.20)
• Si Ma Niu was unhappy and said, “Everybody has brothers. But I am all alone.” Zi Xia said, “I heard thus: Life and death take their course as ordained. Wealth and poverty are made in Heaven. A noble man will tread cautiously and will not make mistakes. A noble man will respect people and abide by Li. If you conduct yourself in this manner, within the four seas, everyone is your brother. How can a noble man worry about not having a brother?” 司馬牛憂曰：「人皆有兄弟，我獨亡。」子夏曰：「商聞之矣：死生有命，富貴在天。君子敬而無失，與人恭而有禮。四海之內，皆兄弟也。君子何患乎無兄弟也？」(12.5)
• [Actually, Si Ma Niu had a brother, 桓魋 Huan Tui, who attempted to assassinate Confucius. Analect 7.23. Zuo Zhuan, Duke Ai, 14]

Question 1

• Duty to disclose

Whether Mr Kim committed an act of deception will depend on whether Mr Kim has a duty to disclose and whether Mr Kim had the requisite intent to deceive and to induce Ms Lee to conclude the contract.

If it can be concluded that a road plan affecting a portion of the garden is not something which has a substantial impact on the buyer’s decision, there cannot be any duty to disclose on the part of Mr Kim.

• Ms Lee’s first notice of termination

Assuming that Mr Kim has no duty to disclose, Ms Lee’s first notice of termination shall be invalid. Ms Lee shall be in repudiatory breach. Ms Lee shall also be in mora creditoris.

• Mr Kim’s impossibility of performance

On or after the closing, both parties’ contractual obligations shall remain obligations without a due date. As Ms Lee is in mora creditoris, Mr Kim shall only be liable for intentional or grossly negligent breach. Mr Kim’s failure to pay interest on his loan, which led to the foreclosure of M Bank, shall be assessed as Mr Kim’s intentional breach of contract. Mr Kim shall thus be held liable for his impossibility of performance. Ms Lee’s second termination notice shall therefore be valid.

• Damage

Ms Lee shall be entitled to damage award (in addition to termination). But the amount shall be reduced taking account of the parties’ comparative negligence.

• Alternatively, in the event Mr Kim is found to have a duty to disclose

If the court or the tribunal finds that the road plan which affects a portion of the garden has a substantial impact on Ms Lee’s decision to purchase the property, then Mr Kim shall have a good faith duty to disclose the road plan. Mr Kim’s failure can, in such a case, amount to a deception if Mr Kim had the requisite intent. Ms Lee’s first ‘termination’ notice can in that case be interpreted as a notice of rescission (voidance). If Mr Kim did not have the requisite intent to deceive and to induce Ms Lee to conclude the contract, Mr Kim’s failure to disclose can still constitute a breach of contract. In such a case, Ms Lee’s first termination notice can most probably be valid (assuming that the road plan is found to have a substantial impact on Ms Lee’s decision to purchase the property, Mr Kim’s failure to disclose will be assessed to be a ‘material’ breach).

Question 2

• If Y does not terminate the contract, but seek damages in lieu of performance

Then the amount of Y’s damage entitlement must be assessed as of the date of impossibility (1 Jan 2018). Y shall be entitled to the market value of the property as of 1 Jan 2018, which is 1.4 billion KRW plus interest from 2 Jan 2018.

X shall not have any defence. X shall be entitled to keep the money received from Y.

• If Y terminates the contract and seeks damage (which is not a wise step for Y to take)

Both parties must restore everything. Additionally, X has also to pay interest on the purchase price he received from the date he received the money. Y has also to pay market rate of rent for the property from the date he took the delivery.

Additionally, Y can choose between performance measure damage (0.4 billion KRW) or reliance measure damage.

X can have a defence of simultaneous performance to refuse (i.e., delay) payment of damage until Y disgorges the benefit of using the property (assuming Y has not done so to Z, see 2016Da240).

• If X did not know, at the time of the contract, that the property did not belong to him [however, this point was not considered in grading as it was not covered by this semester’s syllabus]

X can terminate the contract (Art, 571(1)). Then all the consequences of termination and the defence of simultaneous performance explained above shall apply.

X shall have to pay damage to Y (but Y can choose between performance measure damage and reliance measure damage).

1. 장엄한 밤하늘

선생님이 이렇게 말했다: “덕(德)으로 하는 정치는 북극성에 비유할 수 있지. 자신은 그 자리에 머물고 무수한 별들이 경배하며 함께 움직이지.” 子曰：「為政以德，譬如北辰，居其所而眾星共之。」 (爲政 2.1)

尙書, 康誥 2, 3, 11, 12, 14

돌아가신 우리아버지 문왕(文王)께서는 덕(德)을 환히 밝히시고, 형벌을 신중히 행사하셨다(克明德慎罰).

너의 덕(德)이 넉넉히 하늘에 까지 닿도록 크게 되어야(弘于天若德裕乃身) 너가 쫒겨나지 않고 왕께서 너에게 내린 명을 제대로 완수할 수 있을 것이다.

부지런히 [선왕들의]덕(德)을 받들고, 너의 마음을 평안하게 쓰고, 너의 덕(德)을 돌아보고, 계획을 원대하게 하고, 너그럽게 대하면 백성들이 평안하게 되어 너를 비난하거나 내치지 않을 것이다.

尙書, 太甲下 8 덕이 있으면 다스려 지고, 덕이 없으면 혼란하게 됩니다. 다스려지는 길을 채택한다면 흥하지 않는 것이 없을 것이고, 혼란한 처사를 채택할 경우 망하지 않는 것이 없을 것입니다 (德惟治，否德亂。與治同道，罔不興；與亂同事，罔不亡

2. 有恥且格: 君君，臣臣，父父，子子。

선생님이 이렇게 말했다: “정략(政)으로 사람들을 조종하고 형벌로 다스리면 사람들이 요리조리 빠져나가고 부끄러운 줄 모르게 되지만, 덕(德)으로 이끌고 예법(禮)으로 다스리면 사람들이 부끄러움을 알 뿐 아니라, 모든 게 제 자리를 찾게 되지(有恥且格).” 子曰：「道之以政，齊之以刑，民免而無恥；道之以德，齊之以禮，有恥且格。」(為政, 2.3)

제(齊)나라 경공(景公)이 공자에게 정치에 관해 묻자 공자가 이렇게 대답했다: “임금은 임금답고, 신하는 신하답고, 아버지는 아버지답고,아들은 아들답게 하는 것이지요.” 경공이 “그렇군요! 임금이 임금 같잖고, 신하가 신하 같잖고, 아버지가 아버지 같잖고, 아들이 아들 같잖으면 비록 곡식이 있다 한들 내가 그걸 먹을 수 있겠습니까?”라고 했다. 君君，臣臣，父父，子子。(顔淵12.11)

3. 정당하고 적정한 형벌(刑之中)

애공(哀公)이 “어떻게 해야 사람들이 복종하게 됩니까?”라고묻자 공자가 이렇게 대답했다: “올바른 사람을 기용하여 굽은 것들을 쳐내면 사람들이 복종할 것입니다. 굽은 자를 기용하여 올바른 사람들을 쳐내면 사람들이 복종하지 않을 것입니다.” 「舉直錯諸枉，則民服；舉枉錯諸直，則民不服。」(爲政 2.19).

형벌이 질서있게 시행되면 백성들이 너에게 분명히 복종하게 되며(乃大明服) 스스로 단속하고 화합한다. 백성들이 나쁜 짓을 마치 질병처럼 여겨 안하게 되고, 평온한 통치를 마치 어린 아이 돌보듯 소중히 여기게 된다. 강숙봉 너가 사람을 벌하고 죽이는 것이 아니니 함부로 아무나 벌하고 죽이지 마라. 너가 사람의 코와 귀를 베는 것이 아니니, 아무나 함부로 코와 귀를 베지 말라. 尙書, 康誥 6

“사정 담당관들이 형벌을 적정하게 시행하여 백성을 제어하고(士制百姓于刑之中), 덕(德)을 엄숙히 받들도록 교육했다” … “모름지기 덕(德)을 열심히 실천하고 적정한 형벌 집행을 공명정대하게 하여(明于刑之中) 백성들이 떳떳하게 되도록 잘 이끌고 다스린다” 尙書, 呂刑 3

“위(衛)나라 군주가 선생님을 대우하여 정치를 맡기면 선생님은 먼저 뭐부터 하실 건가요?”라고 자로가 묻자, 선생님은 “이름부터 반드시 바로잡아야지!”라고 답했다. 자로가 “멀리 돌아가시는 선생님 스타일은 여전하군요! 어떻게 이름을 바로잡아요?”라고 하자, 선생님이 이렇게 말했다: “너 참 무식하구나. 자고로 군자는 자기가 모르는 것에 대해서는 입 다물고 있어야 해. 이름과 실질이 서로 드러맞지 않으면 말이 꼬이고, 말이 꼬이면 되는 일이 없고, 되는 일이 없으면 예법과 음악(禮樂)이 흥하지 못하고, 예법과 음악이 흥하지 않으면, 형벌이 빗나가고(刑罰不中), 형벌이 빗나가면 백성들이 어디에 손발을 둬야 할지를 모르게 되지…” 禮樂不興，則刑罰不中；刑罰不中，則民無所措手足。(子路, 13.3)

계강자가 공자에게 정치에 관해 묻자, 공자가 이렇게 대답했다: “정치는 바로 잡는 것입니다. 선생께서 솔선하여 바르게 이끌면 누가 감히 못된 짓을 하겠습니까?” (顔淵 12.17)

노나라 대부 계강자가 정치에 대해 공자에게 물어보면서 “무도한 자들을 처형함으로써 올바른 도리를 확립하는 것은 어떤가요?”라고 하자, 공자가 이렇게 대답했다. “선생께서 정치를 하시는데 처형은 해서 뭣하겠습니까. 선생께서 옳음을 추구하시면 백성도 올바르게 됩니다. 군자는 바람과 같고, 소인은 풀과 같습니다. 풀위에 바람이 불면 풀은 눕게 마련입니다.” (12.19)

“군자는 덕을 마음에 품고, 소인은 땅을 마음에 품어. 군자는 형벌을 염두에 두고, 소인은 혜택을 염두에 두지. (4.11)

周禮, 秋官司寇57: “형벌 집행을 공명정대하게 하여 부끄러움을 알게 한다(以明刑恥之)”

易經, ䷷旅, 象傳: “군자는 형벌을 분명하고 신중하게 사용한다(君子以明慎用刑)”

[노나라 대사구(大司寇) 공자가 노나라의 대부(大夫) 소정묘를 정치를 어지럽혔다는 이유로 베어죽이는 형벌(誅)에 처하였다. 定公14年，孔子나이 56] 나라의 정치가 이렇게 행해지고 있다는 소문이 돈지 석달이 지나자양고기와 돼지고기를 파는자들이 가격을 불리지 않고,남녀는 서로 떨어져서 길을 다니고, 길거리에 분실물이 있어도 사람들이건드리지 않았고, 사방에서 그나라를 방문한 외지인들이 관리들에게 뇌물을 주지않고도 원하는 바를 얻어 돌아갔다. 史記, 孔子世家19

禮記, 曲禮上68: 예법은 아래로 서민에까지 미치지 않고, 형벌은 위로 대부에까지 미치지 않는다 (禮不下庶人，刑不上大夫) ??

4. 종법봉건제도와 孝

有子가 이렇게 말했다: “부모를 제대로 모시고 형제를 사랑하는 자가 윗 사람 범하기를 좋아하는 경우란 드물다. 윗 사람 범하기를 좋아하지 않는 자가 반란 일으키기를 좋아한 경우는 여태껏 없었다. 군자는 근본에 충실하려 노력한다. 근본이 확립되면 올바른 길이 살아날 것이다. 효심과 우애야 말로 윤리의 근본을 이루는 것이다.” 孝弟也者，其為仁之本與 (學而 1.2)

선생님이 이렇게말했다: “아버지가 살아계실 때에는그 뜻을 살피고, 돌아가신 후에는 생전의 행적을 살펴 봄으로써 아버지가 채택한 제도(父之道)를 삼년 간 변함 없이 유지한다면 효심이 있다고 할만하겠지.” (學而 1.11).

자장이 “서경에 보면, ‘고종(高宗)이 상을 당했을때 3년간 말을 하지 않았다’는 귀절이 있는데, 이게 무슨 뜻인가요?”라고 하자 선생님이 이렇게 말했다. “하필 고종 뿐이겠느냐? 옛날의 통치자들은 모두 그랬지. 군주가 사망하면 모든 관료들은 재상에게 업무를 보고하고 그의 지시에 따라 업무를 수행하게 되는데 이 기간이 삼년이라는 것이지.” (憲問 14.40)

史記, 殷本紀23(帝小乙崩，子帝武丁立。帝武丁即位，思復興殷，而未得其佐。三年不言，政事決定於冢宰，以觀國風)

증자가 이렇게 말했다: “孟莊子의 효행은 다른 사람들도 능히 도달할 수 있는 것이지만, 아버지가 거느리던 신하들을 교체하지 않고, 아버지가 채택한 정책을 변경하지 않는 것은 하기 어려운 것이라고 선생님이 이야기 하는 걸 들었습니다.” (子張 19.18)

멀건 미음을 들이키며 오만상을 찌푸리고(歠粥 面深墨) 3년간 울기만 하고 말을 안한다? 孟子, 滕文公上2

5. 直의 문제인가, 孝의 문제인가?

섭공이 공자에게 “우리 마을에 진짜 정직한 사람이 있어요. 자기 아버지가 양을 훔쳤는데 아들이 그걸 증언했지요”라고 하자, 공자는 이렇게 말했다: “우리 마을의 정직한 사람은 그것과 다릅니다. 아버지가 한 일을 아들이 숨겨주고 아들이 한 일을 아버지가 숨겨주는 것(父為子隱 子為父隱)도 정직한거죠.” 子路 13.18

섭공이 자로에게 공자에 관해서 묻자, 자로가 상대하지 않았다. [이 일을 전해 들은] 선생님이 이렇게 말했다: “너 왜 대답을 안했니? 그 사람은 분노하면 밥먹는 것도 잊고, 기쁘면 걱정도 잊고, 곧 나이가 들어 노인이 될거라는 것도 모르는 사람이라고 하면 되지.” 述而 7.19

섭공이 정치에 관해서 묻자 선생님이 이렇게 말했다: “가까이 있는 사람들을 기쁘게 하면 멀리 있는 사람들도 오겠지요.” (子路 13.16)

直而無禮則絞 (泰伯 8.2),
好直不好學 其蔽也絞 (陽貨, 17.8)
學則不固 (學而 1.8)

선생님이 자공에게 “너도 증오하는 것이 있니?”라고 하자, 자공이 이렇게 말했다: “변죽만울려대면서 안다고 여기는 자, 불손함이 용기라고 여기는 자, 고자질을 정직이라고 여기는 자를 증오합니다.” 陽貨 17.24

전국시대 사상가 맹자의 孝근본주의, 孝절대주의:

어질기로 유명한 순(舜)임금이 통치권자이고 올곧기로 유명한 고요(皋陶)가 법무부 장관인 상황에서, 순 임금의 아버지 고수(瞽瞍)가 살인을 저지르면 법무부 장관 고요는 국법에  따라 엄정한 처벌 절차를 밟을 것이고, 순임금은 국법을 함부로 무시할 수 없으므로 아버지가처벌되지 않도록 명할 수 없으니 결국 순 임금은 천하를 헌신짝처럼 버리고 감옥에 몰래 침입하여 아버지를 등에 업고 도망쳐서(竊負而逃) 아름다운 해변이 펼쳐진 곳에 정착하여(遵海濱而處) 부자가 단둘이 여생을 행복하게 살며 천하를 잊고 지낼 것임.

윤리적 Black Hole (孟子, 盡心上35; 萬章上 1-3) (cf. 춘추시대 종법봉건제도 하의 공자의 세계관)

사마우(司馬牛)가 우울한 심정으로 “세상 사람들 모두 형제가 있는데 나만 외톨이네”라고 하자, 자하가 이렇게 말했다: “죽고 사는 건 운명에 달렸고, 돈과 지위는 하늘이 정하는 거라고 들었어. 군자가 경건한 자세로 실수하지 않고 사람들과의 관계에서 예법에 맞게 공손하게 처신하면 온 세상 사람이 모두 형제 아니겠나. 군자가 형제 없다고 걱정하면 되겠는가?” (顔淵 12.5)

노나라 대부 맹의자(孟懿子)가 효가 뭔지 묻자 선생님이 “위반하지 않는 것입니다”라고 답했다. 번지(樊遲)가 마차를 몰고 가는 중에 선생님이 번지에게 이렇게 말했다. “맹(孟)씨가 효에 대해 묻길래, ‘위반하지 않는 것’이라고 대답했지.” “그게 무슨 말인가요?”라고 번지가 묻자 선생님이 이렇게 말했다. “살아 계신 동안 예법에 따라 모시고, 돌아가시면 예법에 따라 장례를 치르고, 제사도 예법에 따르라는 것이지(生事之以禮 死葬之以禮 祭之以禮).” (2.5)

문제 해설 간단히 적어봅니다.

1번 문제

담보책임 법리, 담보책임 제한의 효력을 설명할 것으로 기대하고 출제했고, 대부분 학생이 무난히 설명했습니다. 그러나, 좀더 세밀하게 분석하면,

1. 도시계획상 도로 건설이 예정되어 있어 지방정부가 해당 토지를 매수하겠다고 안내하는 상황이 과연 “burden or condition which limits the Company’s right as the owner of the property”인지가 논란거리 일 수는 있습니다. 실제로 매수절차가 아직 시작되지 않았다면, 적어도 SPA 체결당시에는 “소유권에는 아무런 제약(burden)이 없다”는 주장도 가능할 여지가 있겠습니다. 하지만, 그것도 “condition”에는 해당한다는 반박도 가능하겠습니다. 만일 도시계획의 존재가 “명시적 보장”(9.1)에 위반되지는 않는다고 판단될 경우에도(즉, 당사자가 계약 문언으로 표현한 “burden” 이나 “condition” 어디에도 해당하지 않는다고 판단될 경우에도), 민법580조의 “하자”에는 해당한다고 봐야하겠고, 이때는 민법상의 담보책임을 전면 배제하기로 한 당사자간 약정(15.3)의 효력 문제가 논의되어야 하겠습니다.

2. 담보책임 배제/제약/면제 약정의 효력을 논할 때 제584조가 말하는 “매도인이 알고 고지 아니한” 경우에 해당하는지가
핵심이겠습니다. 이때 매도인이 5인이고, 그중 한사람만이 알고 있었다는 증거가 있을 경우(그런데, 그 매도인의 매도 부분은
0.1%에 불과할 경우), 나머지 94.9% 주식 매매계약에 대해서도 담보책임 제한 약정의 효력을 무효화하고, 약정/법적
담보책임을 물을 수 있겠는지가 문제로 될 수 있습니다. Steve Kim 의 역할, 거래 전후의 제반 사정을 종합할 때,
Steve Kim 과의 매매계약 부분이 없었더라면 이 사건 SPA 가 체결되지 않았을 것이라고 볼 수 있다면, 그자 혼자 알았던
경우에도 전체 매도인에 대하여 담보책임 제한이 효력이 없다고 볼 수 있을 것입니다.

3. 담보책임 제한 약정이 효력이 없다면, 계약 해제, 대금감액, 손해배상 등 민법상의 모든 구제 수단이 가능하겠습니다.

4. 담보책임과는 선택적으로 기망을 이유로 한 취소, 착오를 이유로 한 취소도 제기 가능한 법적 주장입니다. 하지만, 이 논점을 채점에 반영하지는 않았습니다.

[2번 문제]

임대차 계약 종료시 부속물 매수청구권에 관한 문제입니다.

오일펌프는 지상에 부착된 것이라서 비교적 쉽게 분리 가능하지만, 임차목적물(토지)에 부속되어 있다고 봐야 하므로 부속물이라고 평가될 것입니다. 비록 임대인은 다른 계획이 있고, 그 임대인의 계획에 따르자면 오일 펌프가 없으면 좋겠지만, “객관적”으로는 오일펌프가 주유소의 편익에 기여하는 것입니다. 임대인이 임차인에게 “당신 비용으로 설치하라”고 했다면, 해당 물건을 임차목적물에 “부속”시켜도 좋다는 허락이 있은 것입니다. 따라서 임대차 종료시에 임차인은 오일펌프에 대하여 put option (매수청구권; 형성권)을 가집니다. 만일 임대인이 자기 비용으로 오일펌프를 설치해 줬다면, 아예 그것은 임대인 소유일터이므로, 임차인의 매수청구권을 논의할 여지가 애초부터 없었을 것입니다.

지하유류저장탱크에 대해서는 분리에 과다한 비용이 들고, 분리할 경우 탱크자체의 효용이 현저히 감소(고철)하는 것이므로 부합된 것으로 보는 것이 무난합니다(94다6345). 따라서 이미 그것은 토지소유자가 소유하는 물건(토지)의 일부로 되어 버렸으므로 임차인이 put option 을 행사할 여지가 없습니다(put option 은 해당 물건이 임차인 소유임을 전제로 하는 개념). 유일한 논점은 원상회복 의무가 있느냐, 이익상환청구권을 행사할 수 있느냐의 문제입니다. “당신 비용으로 설치하라”고 임대인이 허락하였으므로, 임대인은 설치를 허용했고, 따라서 이제 와서 원상회복을 구할 수는 없다고 해석하는 것이 합리적입니다. 즉. 지하유류저장탱크에 대해서 임대인은 원상회복을 구하지 않겠다는 특약을 한 것으로 해석할 수 있습니다. 그 당시에는 임대인이 자기 비용으로 설치해줄 상황이 못되니, 임차인 비용으로 설치해서 사용하고, 종료 후에는 그대로 두고 나가면 되지만, 그 이득 까지 임대인이 취하겠다는 뜻으로 해석하기는 무리일 것입니다. 따라서 임차인은 가치증가분/설치비용 중 작은 액수를 상환받을 수 있다고 봅니다. 이렇게 해석하는 것이 부속물 매수청구권과의 균형상으로도 무난할 것입니다.

대법원 판례 중에는 지하유류저장탱크를 토지에 부합되지 않았고, 여전히 독자적 물건으로서 단순히 ‘부속’된 상태로만 있다고 본 경우도 있습니다(해당 사건의 특수한 사실관계를 고려하여; (민법 256조 참조; 2009다76546). 만일 이 사건에서도 이렇게 봐야 한다면, 부속물 매수청구권을 행사하여 임차인이 put option 을 행사할 수 있다고 결론을 내리면 될 것입니다.