채무불이행으로 인한 손해배상에 관한 민법개정안

2013년 민법개정위원회에서 확정된 개정안을 중심으로

1. The law on non-performance of obligation is at the heart of Korean civil law. The law of non-performance of obligation has been one of the most controversial areas in Korean law, and courts have released a large number of decisions related to this issue, and the Committee for the Reform of the Civil Code (hereinafter “the Committee”), established in 2009, has spent much time and effort to amend the law of non-performance of obligation since 2010. Due to the significance of the law on non-performance of obligation in the civil law, modifying the law of non-performance was among the most important issues in the amendment of the Civil Code. The amendments the Committee finally adopted at the plenary meeting don’t include any dramatic reformation or modernization, but make major changes to the law of non-performance of obligation. Those amendments suggested in the plenary meeting of the Committee in 2013, specifically those related to non-performance liabilities, will be reviewed in this international academic symposium hosted by the Korean Association of Civil Law. The purpose of this symposium is to gather opinions about the suggested amendments so that scholars can communicate opinions for better forms of amendments. Through this symposium, I hope to have chances to listen to diverse opinions of the prominent scholars we invited from Germany, France, and Japan, and also from Korean scholars and judges as well. 2. Currently, the Civil Code has ten provisions on damages for non-performance of obligation, which can be summarized as follows: (1) Article 390 states the fault-based principle of liability, stating that “if an obligor fails to effect performance in accordance with the content of the obligation, he is liable to compensate loss caused by the non-performance.” Some articles of the Civil Code provide detailed rules with regards to delayed performance, such as the timing of delayed performance (Article 387), compensation during the delay (Article 392), and requirement of compensatory liability (Article 395). Since there is no such provision for incomplete (defective) performance nor for anticipatory repudiation, so the courts have applied Civil Code Article 390 to these cases as well. (2) Article 393 defines the scope of compensation for ordinary losses and losses that have arisen through special circumstances. For the latter, the article allows compensation for such losses only when the losses were foreseen or foreseeable. Article 394 states that the compensation should be paid in money, in principle. Other provisions set the principle of contributory negligence (Article 396), the special rules as to non-performance of monetary liability (Article 397), liquidated damages (Article 398), and obligor s subrogation to the obligee owing to compensation for damages (Article 399). 3. In 2013, the plenary meeting of the Committee decided to amend six provisions of the current Civil Code and to add two provisions to the Civil Code and one provision to the Civil Procedure Act. The amended or newly-added provisions are as follows: (1) The second part of Article 390 [non-performance of obligation and compensation of loss] has been amended to explicate that the nonexistence of intent or negligence provides immunity for all types of non-performance of obligation. (2) Article 392-2 [compensation for expenses] has been newly added to provide statutory grounds to seek compensation for expenses. (3) Article 394 [method of compensation] has been amended to state that compensation should be given in monetary terms as a rule, but other methods of compensation are allowed when appropriate.