미국법상 계약위반에 관한 연구

Breach on U.S. Contract Law

There are considerable similarities between Korean contract law and U.S. contract law. By way of example, the both laws have a key concept of non-performance in their breach of contract systems. This situation helps lawyers of a country to understand the basics of the breach system of another country without elaborating. It is necessary, however, for the lawyers of both countries to pay special attention to so-called prima facie similarity. It means that a concept looks like similar at first glance but is different in detail. The concept of non-performance is a typical example. Korean contract law generally uses the concept of non-performance. By comparison, U.S. contract law uses the concept of breach, but it is quite frequently using the breach mixed with the non-performance. The classification of non-performance or breach can be a another typical example. Korean contract law puts emphasis on the classification of non-performance into the impracticability, the delay, and the 3rd type. U.S. contract law, by comparison, puts emphasis on the classification of breach into the material breach and the trivial breach. Those kind of seemingly minor differences are often enough lead to big differences both in legal theory and in legal practice. For example, U.S. contract law is frequently using the rule of condition in the case of non-performance, while Korean contract law is not. For another example, U.S. civil court generally gives the right of termination of contract to a injured by reason of material breach, while Korean civil court does not and does on a case by case basis.