계약의 해제와 채무자의 귀책사유

Termination of Contract and Non-Performing Party s Fault

Civil Code in force requires the fault of the non-performing party for the aggrieved party to terminate the contract in case of impossibility, but it doesn t in Arts 544-545 in case of delay of performance. While the Amendment of Civil Code which the Administration submitted to the National Assembly has the rules concerning termination of contract. Especially Art. 544-2 of Amendment provided the right of termination of the aggrieved party in case of breach of contract. Art. 544-2 of Amendment requires the fault of non-performing party for the right to terminate contract. Because Art. 544-2 of Amendment applies to all types of non-performance, it requires fault for the right to terminate contract not only in case of impossibility but also in case of delay of performance or incomplete performance. But Art. 544-2 of Amendment is often criticised as it is unreasonable that the aggrieved party should be bound to the contract although the performance is delayed not because of the fault of non-performing party. The problem that the fault of non-performing party should be the condition of right to terminate the contract is to examined differently according to the type of breach of contract. Firstly in case of delay of performance, it is desirable for the aggrieved party to terminate the contract when the delay of performance is due to the fault of non-performing party. If necessary, the aggrieved party could be relieved from the contract asserting that circumstances are changed or the performance becomes impossible. Secondly in case of impossibility of performance, the aggrieved party should be allowed to terminate the contract when the impossibility of performance is due to the fault of non-performing party. If the impossibility of performance is due to force majeure or natural disaster, contract should be terminated automatically regardless of the choice of the aggrieved party. For the aggrieved party has no reason to be bound to the contract in which it cannot demand damages or performance that becomes impossible, but has to perform its own duty. Thirdly, the aggrieved party cannot terminate the contract on the ground that the other party breaches the accessory duty of contract. In case of incomplete performance it can only terminate the contract when the incompleteness of performance is substantial enough to relieve the contract. The problem that fault of the non-performing party is necessary for the right to terminate on the ground of incomplete performance depends on the nature of the duty which is not performed. When duty to best efforts is performed incompletely, the fault of non-performing party is not necessary for the right to terminate, because the incomplete performance of duty to best efforts implies the fault of non-performing party. When duty to achieve a specific result is performed incompletely, there are specific rules in Civil Code which allows the aggrieved party to terminate the contract when it cannot obtain the purpose of contract because of the defective performance regardless of the fault of non-performing party.