국제적 통일계약법의 계약해제 제도와 우리 민법의 개정방향

Termination of Contract of International Uniform Contract Laws and the Revision of Korean Civil Code

The international uniform contract laws, such as United Nations Convention on Contracts for the International Sale of Goods(CISG), UNIDROIT Principles of International Commercial Contract(PICC) of International Institute for the Unification of Private Law(UNIDROIT), Principles of European Contract Law(PECL) of Commission on European Contract Law are the most important contract rules that can be referred to in the course of revision of Korean Civil Code(KCC). The international uniform contract laws share some characteristics concerning the rules of termination of contract. 1) They have general clause for termination of contract. If the debtor doesn t perform the obligation of contract and the non-performance is fundamental, the creditor can terminate the contract. It doesn t matter whether the non-performance is delay, impossibility, or non-cooperation. 2) The fault of debtor is not required for termination of contract. It means that even though the non-performance is not due to the fault of debtor, the creditor can termination the contract if the non-performance is fundamental. 3) They allows the debtor to terminate the contract when the circumstances are changed. 4) They entitles the creditor to terminate the contract for anticipatory non-performance, which means an obvious unwillingness or inability to perform the obligation of contract. 5) They entitles the debtor to terminate the contract when the creditor unlawfully reject the performance or doesn t cooperate. 6) Termination of contract has no retrospective effect, it only releases both parties from their obligations to effect and to receive future performance. These characteristics should be reviewed to confirm the need of reception into KCC. However, in reviewing the need of reception, the characteristics of international uniform contract laws should not be thought as the ideal model of contract law. Because the international uniform contract laws have the aim of unifying national contract laws, they are the result of compromise and mixture of national contract laws and have the rules which are very abstract.