유럽계약법원칙의 계약불이행법의 특징

The Basic Characteristics of rules of non-performance in Principles of European Contract Law

Compared with Korean Civil Code(KCC), there are two basic characteristics of non-performance in Principles of European Contract Law(PECL); firstly it rules out the fault principles and secondly it unifies the contractual liability. In PECL, fault is not required for contractual liability. It means that the obligor is liable for non-performance not because it doesn t act with due care but because it has promised to perform. The reason why PECL takes the theory of strict liability principles rather than fault principles is that the former has the advantage of the simple and concise sturcture of contractual liability. PECL unifies the contractual liability. It means that PECL has a unitary concept of “non-performance , which is failure to perform. “Non-performance is a common requrirement for the remedies such as damages and termination of contract, and it includes the cases of initial impossibility, defects of things and failure of acceptance. The purpose of reviewing characteristics of rules of non-performance in PECL is to confirm the need for reception in KCC. The strict liability principles of PECL should not be received in KCC, because in view of legal ethics it is more desirable to require the fault of obligor for the liability of non-peformance. Above all, reception of strict liability principle requires the structure of liability of KCC based on fault principles to be reformed completely, and the radical change in law is undesirable in consideration of legal stability. However it is partly necessary to receive the unification of contractual liability, especially the unification of guarantee liability and contractual liability, and that of liability of initial impossibility and supervening impossibility.