위험배분의 관점에서 본 사정변경의 원칙

The Doctrine of Chaage of Circumstances as a Risk-allocation Mechanism

The doctrine of change of circumstances is, after all, a doctrinal vehicle that allocates unallocated risks of the contract. Therefore, it is highly pertinent to view this doctrine from the perspective of risk-allocation. According to this perspective, the requirements for the application of the doctrine concerns the issue of pre-allocation of risks between parties, whereas the legal consequences of it concerns the issue of post-allocation of risks between parties. If the risk arising out of the changed circumstances has already been allocated within the framework of the contract, there is no need for this doctrine to step in. However, if it has not been internalized within the framework of the contract, now this doctrine steps in paternalistically and decides how it can allocate unforeseen risks. Meanwhile, whether or not the modification of the contract could be deemed an adequate tool for this post-allocation process has been controversial in the academia. Various arguments centering around this doctrine vividly reflect the tension between autonomy and paternalism in the realm of contract law. Although it would be difficult to come up with clear-cut rules, the perspective of risk-allocation as well as the balanced view on the values of autonomy and paternalism in contract law might be highly meaningful in reaching justifiable outcomes in each cases.