계약관계에 있어서 이행청구권의 실현 불능 사유

Contractual Relations and Right to Performance

In civil law countries, the general remedy for breach of contract is specific performance, while in anglo-american countries, contractual obligations are not enforced except those to pay and specific performance is available only in equity when damages are not adequate remedy. However the differences between civil law countries and anglo-american countries are not of practical importance. In civil law countries, damages is preferred to claims for specific performance, because specific performance takes a lot of time and sometimes substitute performance and damages that can pay for substitute performance is more efficient rather than specific performance. In contractual relation, the creditor is entitled to claim performance from the debtor. The most importance exception to this rule is impossibility. When the performance is impossible, a claim for specific performance is excluded. In case of economic impossibility or change of circumstances, a claim for performance could be excluded when the debtor could not reasonably have been taken into account of change of circumstances at the time of conclusion of contract and the risk of change of circumstances are not required to bear by the debtor. Although impossibility and change of circumstances are important reasons of exclusion of the right to specific performance, Korean Civil Code(KCC) has no rules related with impossibility and change of circumstances, which KCC should accept. In common law, damages are an adequate remedy when the creditor can get a satisfactory equivalent of what he contracted for through ; substitute transactions. In other words, availability of substitute transaction is the main reason of exclusion of a claim for specific performance. KCC, however, need not accept this rules, because it is hard to see what legitimate interest of the debtor was protected by the exclusion of a specific performance, and in most cases, the creditor would prefer damages to specific performance. The contract involving personal service could not be enforced, and that was the long settled principle of equity. In civil law, the obligation of personal character could not enforced either, so it is unnecessary to make it another rules of exclusion of a claim for specific performance.