債務不履行法體系의 재점검

A review of the korean legal system of non-performance liability

In this review I examined the korean legal system of non-performance liability centering around general problems of the aggrieved party s right to damages for the loss by the other party s non-performance. (1) Problems of classification of non-performance liabilities under the Korean Civil Code I do not think that it is not useful in Korean Civil Code to acknowledge that a type of defective non-performance or trespass on creditor’s right (in german legal terms “positive Vertragsverletzung”) is a separated and independent form of non-performance liability from late non-performance or no performance, because unlikely BGB(German Civil Code) Korean Civil Code has comprehensive general clause for tort(§750) and the korean case-law on vicarious liability do not excuse employer from his liability for his employee’s fault. (2) Problems of requirements of non-performance liability especially a debtor s fault ① There is room for dispute as a lagislative argument whether a debtor s fault is needed for late non-performance liability or not, but a debtor s fault is needed for late non-performance liability at least as a statutory interpretation of the existing law(Korean Civil code). ② A distinction between means-obligation(in french legal terms “obligation des moyens”) and result-obligation(in french legal terms “obligation de résultat”) does not lead to shifting the burden of proof, but leads to a difference in deciding the object of proof. (3) Problems of effects of non-performance ① The bill for amending the Korean Civil Code will have to be reconsidered that has chosen for the doctrine of reinstatement(in german legal terms “das Prinzip der Herstellung oder der Naturalrestitution”) as a supplementary measure of damages. ② The ruling theory of different interest(in german legal terms “die Differenzhypothese”) that has been supported by judicial precedent as a concept of loss sustained by the other party in consequence of non-performance has many theoretical defects, nevertherless the usefulness of the theory cannot be denied, so its theoretical defects should be supplimented by acknowledging exceptions with regard to various shape of loss. ③ The Korean Civil Code §393 provides that damages will only be awarded in respect of losses which arise naturally, and that the debtor can only be held liable for abnormal consequences where he has actual knowledge that the abnormal consequences might follow; therefore there is no need for judgement whether the causation exist or not to rely upon the theory of adequate causation(in german legal terms “die Adäquanztheorie”), on the contrary it is important to define what is normal loss, and what is special loss.