論撤銷錯誤意思表示之消極要件──以表意人之過失為中心

本文係以法制史與比較法學之方法，比較分析德、日、我國民法之立法經過、學說實務之演進情形，與跨國立法草案之發展情況，針對在立法理由上欠缺說明之我國民法第88條第1項但書所定之表意人無過失之要件進行探討。本文認為，此一要件係源自衡平保護相對人利益之思想，時至今日，應跳脫「表意人對於錯誤之發生，是否有違反應有之注意」之框架，而成為揭露當事人以合乎誠信及公平之行為參與交易應盡之注意義務之要件，允許法院透過此要件衡量表意人與相對人造成誤判情事之歸責性與作用大小，以公平分配錯誤撤銷之風險，協助現代之錯誤論發揮兼顧契約自由與促進交易安全與公平之功能。同時，在此新功能之下，表意人無過失之要件，應重獲存在之必要，並應以善良管理人之注意（抽象輕過失）為其以合乎誠信及公平之行為參與交易之注意之程度。 This research, by comparing the history and status quo of the discussions during the legislations of, and the practical and the academical opinions on application and interpretation of the law of mistake in German, Japanese, and our civil codes, along with the transnational contract law drafts now under discussion, aims at clarifying the requirement of the declarant's non-negligence in the last sentence of Article 88 paragraph 1 of our civil code. We come to the conclusion that such requirement, which came from the thought that the interests of the opponent receiving the declaration should also be protected equitably, should go beyond the frame of detecting the declarant's carelessness over its mistake and become an icon that entails the necessary duty of care for people to get involved in daily transactions with standards of good faith and fair dealing. By this transformation, we could expect that the court would have the possibility to weigh both parties' negligence not complying with such a duty to determine which party is the main cause of the mistake, in order to attribute the risk of mistake more fairly, and that the law and theory of mistake could balance the respect of one's will and the protection on the other's reliance with the goal of promoting the fairness and certainty of daily transactions in modern age. In this scenario, the requirement of the declarant being non-negligent should regain its necessity, and the standard of the duty of care in participating transactions with standards of good faith and fair dealing should be culpa in abstracto.