헛되이 지출한 비용의 배상

Reimbursement of Vain Expenses

If a debtor has not performed his obligations in accordance with the nature of a contract, a creditor can claim for the damages against the debtor. In the nonperformance of a contract, the creditor aims for “compensation for the expectation interest” damage, because he/she seeks to the expected profit that would be gained if the contract were implemented, irrespective of whether the contract has become null. Also he/she pays vain expenses for a contract based on trust that the contract will not become null. If this trust should not be protected, this payments that have been made based on this trust become meaningless. The Supreme Court has handed down on the opinion that the debtor should pay to the creditor for “the compensation of reliance interest to the extent of expectation interest.” The main theory that follows the precedent keeps on the opinion that the creditor can make a claim for reimbursement of expenses based on trust that the concluded contract will be implemented since it is easier to determine and prove in comparison to claiming for compensation of the expectation interest, instead of the compensation for expectation interest. In this sense, the opinion of the theory and precedent are raised a question whether a claim for reimbursement of expenses always is regarded as a breach of reliance interest of the creditor, when the objective of a contract cannot be met, and the creditor is satisfied with being reimbursed for one s expenses only. If the contract is made void already in contracting or uneffective retroactive to nonperformance, the creditor can claim for compensation of the reliance interest. However, if the creditor makes claim for damage of nonperformance as substitute of a performance, it is considered that the damage is evaluated the breach for compensation of the expectation interest because the contract is still valid. Amendments of Korean Civil Code, 2013 newly established regulation on compensation of vain expenses referring German Civil Code 284. Amendment 392, 2 is that the creditor can make a claim for reimbursement of expenses based on trust that the concluded contract will be implemented. It stipulated the reimbursement of expenses the theory and precedent the theory and precedent conceded but it regulated “the compensation of reliance interest should be limited to the extent of expectation interest.” In this case, what expenses are, how the legal structure on reimbursement of expenses is, and what expenses are related with compensation are called into question. This study investigates the legislation of a claim for reimbursement of expenses and compensation for the expectation interest in Germany and USA and then is going to show its implication. Furthermore, on the base of that, this study examines the Korean amendments of 2013 and tries to suggest the right direction of amendments of Civil Code. deals with the following problem: on payments made for the conclusion or implementation.