美術品 認證人 및 鑑定人의 責任에 관한 美國法 硏究

Abstract

The emergence of art as an investment has stimulated an increase in art forgery as well as art transactions. Accordingly, the opinion of persons who authenticate or appraise art, including the art authenticator, art appraiser or art historian (collectively termed "art experts") has the most direct effect on art market and major financial decisions are often based on the opinion of those who authenticate and appraise a work of art. When things go wrong, art experts need to be held liable for professional misconduct. The purpose of this thesis is to provide an overview of the liability of the art authenticator and art appraiser in American Law and reflect possibilities of the application in Korea. The chapter Ⅱ deals with the art appraisal situation and relevant problem and discusses the theories of liability of the art appraiser in Korea. Though several causes of action are available to the plaintiff, research has been scarce and cases have not been accumulated in this field yet. The chapter Ⅲ covers the general consideration about art authentication and art appraisal and concerns the regulation of art experts in America. This chapter concludes with the most common causes of action asserted against art experts and affirmative defenses in American Law. Art experts can incur liability under a variety of legal theories: most notably disparagement, defamation, negligence, fraud and negligent misrepresentation. However the most dramatic change in recent years has been the recognition of a standard of care applicable to art experts and reliance on instinct and educated guesses, unsupported by methodical research, fact-gathering and analysis, is no longer an acceptable method of practices. Considering discrepancies of the legal system or environment between America and Korea, a discussion of American Law will not apply to all cases, but it would be helpful in setting forth standards on the liability of the art experts enacting laws dealing specially with art appraisal in Korea. This thesis focuses on civil liability of art experts and accordingly does not deal with their criminal liability and seller's representations of authenticity governed by the Uniform Commercial Code are also outside the scope of this thesis. The emergence of art as an investment has stimulated an increase in art forgery as well as art transactions. Accordingly, the opinion of persons who authenticate or appraise art, including the art authenticator, art appraiser or art historian (collectively termed "art experts") has the most direct effect on art market and major financial decisions are often based on the opinion of those who authenticate and appraise a work of art. When things go wrong, art experts need to be held liable for professional misconduct. The purpose of this thesis is to provide an overview of the liability of the art authenticator and art appraiser in American Law and reflect possibilities of the application in Korea. The chapter Ⅱ deals with the art appraisal situation and relevant problem and discusses the theories of liability of the art appraiser in Korea. Though several causes of action are available to the plaintiff, research has been scarce and cases have not been accumulated in this field yet. The chapter Ⅲ covers the general consideration about art authentication and art appraisal and concerns the regulation of art experts in America. This chapter concludes with the most common causes of action asserted against art experts and affirmative defenses in American Law. Art experts can incur liability under a variety of legal theories: most notably disparagement, defamation, negligence, fraud and negligent misrepresentation. However the most dramatic change in recent years has been the recognition of a standard of care applicable to art experts and reliance on instinct and educated guesses, unsupported by methodical research, fact-gathering and analysis, is no longer an acceptable method of practices. Considering discrepancies of the legal system or environment between America and Korea, a discussion of American Law will not apply to all cases, but it would be helpful in setting forth standards on the liability of the art experts enacting laws dealing specially with art appraisal in Korea. This thesis focuses on civil liability of art experts and accordingly does not deal with their criminal liability and seller's representations of authenticity governed by the Uniform Commercial Code are also outside the scope of this thesis.