PICC하에서 Hardship 규정과 특정이행청구 예외규정의 비교에 관한 연구

A Comparative Study on Hardship and Exemption of Specific Performance under PICC -focused on Art.6.2 and Art.7.2.2(b)

There is a issue that when two regulations are overlap, what choices are available to the debtor. This paper provides relationship Art.6.2 and Art. 7.2.2(b) as exemption of specific performance under PICC with focusing on the scope of each provision and the legal effect of them. Art.6.2 regulates the hardship situation under which the balance between the two contract parties becomes out of proportion due to drastic change in the market. In other hands, Art. 7.2.2(b) shows an exception to the creditor s right to require specific performance where the performance by the debtor of his obligation is unreasonably burdensome or expensive. Art.6.2 prevails over Art. 7.2.2(b) because even though the situation is changed so that debtor s obligation is unreasonably burdensome or expensive, unless the circumstance causes seriously disequilibrium of contract, hardship situation is not satisfied. In conclusion, in a situation of hardship, the debtor can choose to Art.6.2 or Art. 7.2.2(b) but the debtor only can choose Art. 7.2.2(b) where the performance becomes unreasonably burdensome or expensive.