채무불이행의 요건

Requirements for Contractual Default-Focusing on Recent Works for Civil Code Amendment in Korea -

Korea had once made an attempt to amend the entire Civil Code (General Provisions, Real Rights, and Claims) in 2004, but it did not work out well. After which, the Special Committee (“The Committee ) for a Revised Draft of the Civil Code began its effort for another attempt in 2009 and “The Revised Draft of the Civil Code (“The Revised Draft ) is scheduled to finish within a span of several months. At this material time, the Committee divided The Revised Drafts according to subjects instead of integrated drafts for amendments. The Committee that Ministry of Justice organizes has suggested Draft for Contractual Default. The requirements for Contractual Default are found in Part III of the Revised Draft. There are five parts under Claim sections, inter alia, General Provisions, Real Rights, Claims, Relatives, and Inheritance. The majority s opinion suggested that the ambit of Contractual Default can be traditionally classified into categories of “Delayed Performance , “Impossible Performance , and “Incomplete Performance . Essentially, the requirements to establish contractual default in Delayed Performance are as follows: First, the time at which an obligation is due for performance; second, the performance is possible to be carried out; third, no performance has yet been made; fourth, the fault of non-performance arises from the defaulter; fifth, the default is unjustified (illegal). Further, the requirements for Contractual Default under the heading of “Impossible Performance are following: First, the impossibility of performance arises after a claim is made ; second, the impossibility of performance arises from the defaulter s fault; third, the default is unjustified (illegal). The requirements for Contractual Default under the heading of Incomplete Performance are following: First, performance has already been made; second, the performance is not complete. third, the incomplete performance arises from the defaulter s fault. fourth, the default is unjustified (illegal). Therefore, the Revised Draft includes a number of new requirements to establish a claim for contractual default. In particular, the revised version of Article 390 provides that If an obligor fails to effect performance in accordance with the tenor and purport of the obligation, the obligee may claim damages; provided that this shall not apply to cases where performance has not made and where this is not due to the obligor s intention or negligence. The current Article 390 indicates that it applies to where performance has become impossible. However, this has been applied to all kinds of non-performance cases. In other words, an obligor is exempted from a contractual liability, if his non-performance arises without his fault. The current Articles 390 and 546 regulate only defaulter s fault under the heading of Impossible Performance . However, most legal scholars agreed that the defaulter s fault is the core requirement for all kinds of non-performance in any contractual liability case. That is why the revised version of Article 390 tries to remove the problem of inconsistence within the Article itself and its interpretation. Article 388-2 is an example of a new Article to the Revised Code, which recognizes a right to cure in cases of “Incomplete Performance ; whilst Article 388 (3) provides an obligee with a right to damage when a claim on a right to cure is made. A conditional clause reads as “A party burdened with previous performance cannot claim the defense for simultaneous performance when the other party provides sufficient security . This is an addition to the existing Article 536 (2) of the Revised Code.