계약해제에 관한 비교법적 연구

Abstract

A contract is the representative juristic action of the causes of the legal effects based on private autonomy. The matter of binding force and disorganization of a contract is very important in the law of contracts. In case that the aggrieved party cannot attain the purposes of a concerned contract intended at the time of the conclusion due to the defaulting party's default, the termination of the contract provides the former party with the possibility of forming a new contract relation by disaffirming the concerned contract relations and getting out of the binding force. That is, the termination of a contract is characterized by its position at the contact point between the loyalty to the contract and disorganization of it. It is a kind of legal remedy to arrange the payments that have failed to be delivered according to the contract relations. This is why the termination of a contract by the aggrieved party should be accepted when observing the contract any longer puts him or her in a harsh situation owing to the default by the defaulting party even if the contract was concluded in a valid way.

Recently the Ministry of Justice decided to include the provision, which has been the interpretation of the majority in the law, in the revision of Article 544-2 of the Civil Code. The Provision established the responsibility of the defaulting party as one of the requirements of a termination. With the decision, the matter of the termination of a contract has been raised about whether it was necessary to prescribe the reasons of responsibility as part of the requirements, considering the functions and nature of a termination. The consequent attention has been paid to the interpretation of the termination of a contract, which is an effect of a default.

Thus this study attempts to conduct a systematic interpretation of the termination of a contract based on the consideration of the original functions and intents of the termination system. Further it reviews the provisions of the termination of a contract of BGB, CISG, and PECL that were recently revised from the perspective of the comparative law. Those considerations from the perspective will have lots of implications for the Korean civil code.