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KCI우수등재 학술저널

부수적 채무의 불이행과 계약해제

연구대상판결: 대법원 2005. 7. 14. 선고 2004다67011 판결(공보 2005, 1317)

  • 14

The party contracting has to fulfill the duties which resulted from the contract. A debtee can rescind the contract in case that a debtor do not fulfill the contract. The conventional theory and decision have conceded rescission in the premises that the party of contract has the burden. If the goal of contract, which is main debt, is inevitable but it s not fulfilled, the rescission can be achieved. Otherwise, if the subsidiary debt is not fulfilled, the rescission can not be achieved. However the debt which the party of contract gets is not easy to be distinguished according to the interpretation of the party s will. These division theory has come from the result that the possibility of rescission is conceded for the main debt and the impossibility of rescission the subsidiary nonfulfillment of debt. This paper checked that how these theory of the debt division has been applied for the case in Japan and then analysed the characteristics of the case critically in Korea. Especially, it suggested the rescission is not resulted from the debt division but it should be achieved on the condition of frustration of fundamental inter-contractship.

[사실관계 및 판결]

Ⅰ. 문제의 제기

Ⅱ. 계약상의 부수적 채무

Ⅲ. 부수적 채무의 불이행에 기한 계약해제

Ⅳ. 맺음말

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