債務不履行法과 瑕疵擔保責任法의 통합 모색

A Grope for integration of the law of non-performance and Warranty - especially laying emphasis on condition

This study is for consideration a dispute over a integration of the law of non-performance and Warranty as revision of the Civil Code propeled by Ministry of Law. The meaning of integration of the law of non-performance and Warranty is that conform the condition and the effect of Warranty to the general non-preformance liability if possible. On this study I examined the possibility and the necessity of the conformity of the provision of Korean Civil Code §580 about Warranty as a special provision to the provision of Korean Civil Code §390 about general non-preformance liability, especially laying emphasis on condition of Warranty of a seller. More reasonable solution is newly establishment of general clause about non-preformance liability or defective performance than revision of the provision of provisory clause of Korean Civil Code §390. It must be deleted the Korean Civil Code §535, because it is founded on the premise that impossibility has no obligation(Impossibilium nulla obligatio). And it is desirable to ① stipulate expressly seller s duty to deliver goods without defect in the Civil Code to make clear the nature of Warranty as non-preformance liability, ② provide united provisions of Warranty regardless of sale of specific things(Spezieskauf) or sale of kind(Gattunskauf), ③ provide clearly the concept of defect that is fit for the contract, ④ provide clearly the condition of liability for damage.