급부장애

Impediment to Obligation- Focused on the Way of Regulation -

The law of impediment to obligation has been placed in the central position in the law of obligation. The claim for damage and the right of termination, which are the effects of impediment to obligation, are the most important legal system. In Korea, if a debtor does not fulfill the obligation, the claim for damage and the right of termination are regarded as the effects of non-fulfillment. In this case, there may appear a dispute that a claim for damage from debtor s non-fulfillment should be regarded as a claim for damage which is from the case that a salesperson provides defected object. The contents of Korean civil law connected with impediment to obligation is abstract, ambiguous and simple that its legal problem has been solved through interpretation. On the contrary, European countries and most countries of the world have solved these problems through the legislation. Therefore, impediment to obligation in our civil law needs the legislative improvement as follows. First, to solve the problem that occurs from the connection the effect of impediment to obligation with the individual type, our civil law should proceed toward the way that empowers legal effect in the consideration for the degree of breach of contract. Second, impediment to obligation should be comprehended in the centered on the parties’ benefits. The right of performance should be in the position as the first right of performance for as a means of relief of non-fulfillment. Third, the civil law should give the second opportunity to perform to a debtor as the effect of impediment to obligation firstly and then in the case of the elapse of the opportunity, the means of a relief which a creditor makes a choice should be applied secondly.