契約解除의 本質 및 效果

Nature and Effect of the Cancellation for Breach of Contract

&nbsp;&nbsp;(1) The system of a cancellation of the Korean Civil code(KBGB) inherited the system of a cancellation of the abrogated old Korean Civil code(the Japanese Civil code), and the system is a compromise between the system of French Civil code(Code civil) and the system of German Civil code(BGB).<BR>&nbsp;&nbsp;(2) The system of a cancellation is a system that has been designed for protecting the innocent party(creditor) who has already performed his contractual obligations in bilateral contract. The institutional significance of the system of a cancellation is that it is a special remedies for innocent party(creditor) to free himself unilaterally from biding force of contract. Namely, the system of a cancellation is a system that is recognized by the Principle of Good faith and Fair dealing to protect innocent party effectively and that is the system for making up for the weak points in the system of damages for breach of contract. By understanding the nature of a cancellation as the sytem of making up for the weak points in the system of damages for breach of contract, we can clear up the §551 of KBGB that admits the retrospective effect of cancellation of the contract ab initio, while admits the concurrence of damages for breach of contract.<BR>&nbsp;&nbsp;(3) The question whether a cancellation of the contract has a retrospective effect or not is not the pure theoretical problem but the problem of a definite decision in optional legislative policies. Therefore, the question which is proper interpretative theory on the KBGB between ？the theory of directive effect？ and ？the theory of relation of liquidation？ is dependent upon whether KBGB provide the retrospective effect to restore the status quo ante(restitution of performance, thus restoring the parties to their precontractual positions) of contract as the effect of the cancellation or not. From this point of view, we can say that the KBGB coincide with ？the Theory of directive effect？. Because the KBGB clearly distinguish between a termination of the contract which simply brings to an end any duty to perform obligations which have not yet been performed and a cancellation of the contract which rescind the whole contract ab initio to restore the status quo ante, and the KBGB provides the third party protection clause §548(1) that supposes a proprietary effect of a cancellation of the contract.<BR>&nbsp;&nbsp;(4) Restoration the status quo ante by the cancellation of the contract has proprietary effect, and the right to claim restoration for a cancellation of the contract has a nature as a proprietary right to claim. The §548(1) is a special clause to prevent destroying the safety of deal that caused by restoring the real right to original owner by cancellation of the contract as a matter of course.<BR>&nbsp;&nbsp;(5) The essential contents of a cancellation of the contract is to restore the status quo ante(the original condition) that has proprietary effect for making up for the real problem(weak points) in the system of damages for breach of contract. So even the effect of a contract extinguishs retrospectively by a cancellation of the contract but the right to claim damages for breach of contract(non-performance) does not extinguish. The §551 of KBGB is the prescription that makes clear this point of view. And although the law make fiction that the contract has been extinguished retrospectively by a cancellation of the contract, the real losses of a innocent party for breach of contract would never extinguish. Therefore, it would be desirable to recognize the right of a innocent party to claim damages for breach of contract separately the retrospective effect of a cancellation of the contract and the effect of restoring the status quo ante.