建築都給契約上의 解除權에 관한 沿革的 考察 - 일본민법 제635조 단서에 관한 논의를 중심으로

A Historical Study on the Right of Cancellation over Building Contract - Focusing on the debates about the provisory article of Japanese Civil Law Clause 635 -

&nbsp;&nbsp;This thesis looks into the debate of legislative procedure on the provisory article of the Japanese Civil Law Clause 635 and reviews the debates on the provisory article of the Civil Law Clause 668. The theory of Korean Civil Law, which is consisted of equal law system and text, has been accepting the exclusive opinion of the Japanese Civil Law without different views. However it could be generally accepted that the provisory article of the Japanese Civil Law Clause 635 had been prescribed without enough debates on the process of legislation. There are lots of problems including drafter’s different viewpoints, social economics, and enforcing descriptions on the legislation of the Clause.<BR>&nbsp;&nbsp;The Standpoint on the side of the maintenance on the provisory article of the Civil Law Clause 688 over the opinion of the revision of the Civil Law prescribes to accept the restriction of cancellation in case of the building contract which its returning to the original owing to the cancellation may cause extremely unfair results socially and personally, nevertheless the attitude which has subjective mark as “the probability on achievement of contract” on the condition of cancellation, the responsibility for mortgage in the building contract, might not be matter on the trade contract. I quite agree with this opinion.<BR>&nbsp;&nbsp;In the process of legislation, the provisory article of the Japanese Civil Law Clause 635 doesn’t have to be applied unexceptional in case the building, and other real estates is considered as its purpose.<BR>&nbsp;&nbsp;Thus, it would be appropriate to apply the provisory article as restrictive regarding the reasonable solution to the situation in case there is a considerable problem that the reconstruction of the completed building owing to the security is even not considered as proper way.<BR>&nbsp;&nbsp;In conclusion, the provisory article of the Civil Law Clause 668 has to be maintained. However it has to be restricted in case it is worth objectively as the building like that in the objective viewpoint nevertheless the contractor might not achieve the aim of contract in the interpretation, besides it has to be interpreted not to apply in case it is necessary to rebuild the building after removal owing to considerable defects and problem of usage. Moreover the provisory article doesn’t have to be interpreted as the enforcing descriptions.