채무불이행의 효과 – 계약의 해제

Termination of Contract as Effect of Non-Performance

Whenever a party does not perform an obligation under the contract, the aggrieved party can resort largely to two remedies, namely compensation and termination of contract. Korean civil code declares that one remedy do not exclude the other one, which coincides with the trend of comparative law. This article deals with termination of contract as effect of non-performance, focusing on the intents of draft of Korean civil code. Discussing on the requirements of termination, there are two groups in the view of comparative law. The international legislations like CISG, PICC, PECL have the root on the common law, which lay the fundamental non-performance on the center. This concept contributes to harmonize the conflicting interests of both parties on the right to terminate. And the fault of the aggrieved party is not a requisite of termination. At the same time these legislations combine the delay of performance with the ‘additional period’(Nachfrist), which is the product of German law. Besides they prescribe the termination prior to time for performance, the so-called anticipatory non-performance , which is a product of common law. On the other hand German law starts on the ground of traditional classification of non-performance, but substantially accepted the tendency of international legislations and transformed itself. But on the judgement to allow termination German law seems to emphasize the combination with the procedural factor, additional period . About the degree of non-performance it passively prescribes, so that in the slight breach the aggrieved party can not terminate. One of the noteworthy changes is that German code discarded the fault-principle in the field of termination of contract. A comparative survey shows that there will be no great practical difference between two systems. The draft of Korean civil code takes a sort of compromise in a regard that it provides the concept of material non-performance in a passive way and additional period as the main factor in deciding to terminate or not. The material intents of the draft can be summarized below. First of all the main shift of the draft is to break with the fault principle of termination of contract. It reveals the change of contract termination from the idea of punishment on debtor to the discharge of creditor from the hopeless contract. So the draft removed the grounds of fault. Secondly some have claimed the so called fundamental nonperformance requirement be accepted as grounds of termination. The draft refused to do it because it changes too much the system of responsibility of non-performance. Besides the draft accepted the termination prior to time for performance and refused to allow the termination in case of creditor s fault. In conclusion the draft seems to be familiar with german system, which emphasizes the key role of additional period in the field of termination of contract. About the effect of termination we find just minor change. In case of returning the supplied property he has to return the earned fruit from property. If the one party cannot return the received property, he has to return the amount for the value of property to the other party, unless the other party has fault in no returning of property. This amendments are provided to clarify the present status of interpretation. The draft introduced a new provision on termination of durational contract, which has characteristic in the duration of contract. Termination of this kind of contract has effect only in a prospective way, compared to retrospective effect of termination in general according to Korean case law. The draft provides a additional ground for termination of durational contract, namely the one party can terminate the durational contract in case that he cannot anticipate