이행기 전 이행불능 및 이행거절의 효과 - 손해배상(전보배상) 청구권과 대상청구권을 중심으로 -

Abstract

In this article, we looked at the occurrence, timing and scope of exercise, focusing on the right to claim damages (compensation for compensation) and the right to claim compensation due to non-performance or refusal to perform before the period of performance. First of all, with regard to compensation for damages (compensation for full compensation) and compensation for delay due to non-performance or refusal to perform, the prevailing view and the Supreme Court are based on the market price (compensation for full compensation) at the time of non-performance or refusal to perform. From that time, including the day of refusal of performance, was used as the starting date for delay compensation for the above telecom compensation. However, it is difficult to deny that the theoretical basis for distinguishing before and after the transition period or in cases of simultaneous transition was not provided or was lacking. The same applies to the target claim. In particular, the traditional view overlooked the need to discuss the subject claim in refusal of performance by only discussing it as an effect of the impossibility of performance. Accordingly, in this article, we examine the specific occurrence, timing and scope of exercise of the right to claim compensation for damages (compensation for full compensation) due to non-performance after the performance period, and then apply the legal principles of compensation for damages (compensation for full compensation) above. An attempt was made to apply or analogously apply it to the impossibility of performance and refusal to perform before the performance period. In addition, by expanding the scope of application of the target claim, which was previously discussed only as an effect of impossibility of performance, it was confirmed that there is a need to discuss the target claim in certain cases even in the case of refusal to perform. Furthermore, it was confirmed that for many of the claims (claims) discussed here, any irrationality that may arise due to the claims competition theory can be resolved in advance.