契約遵守의 確保方案에 관한 研究

Abstract

The principle of contract observance (Pacta sunt servanda) is a fundamental rule which has been recognized in modern civil law since the Roman Law. The principle of contract observance is founded on the principle of private autonomy(Privatoautonomie)in which accepts the absolute authority of individuals' intention and allows private individuals to form legal relations between them on their own will. Therefore, such principle of contract observance is a dominant principle by which parties concerned should carry out a contract according to the binding force of the contract and parties entering into the contract should observe. However, if the circumstances basing the constitution of the contract remarkably changed, and the parties can't expect it, so it is unreasonable to compel them to observe the original content of the contract as keeping the original content of contract is against the principle of faith and fidelity, the issue comes up as to the need of change of the contract according to the legal principle of circumstantial changes(clausula rebus sic stantibus). Then, the principle of contract observance and the legal principle of circumstantial changes are both conflicting legal benefits, so it is a critical legal task how to balance them out harmoniously. Thus even if they are expressly stipulated at the Civil Law, they should be established in a direction to make clear that the principle of contract observance is the broad one, and in an exceptional case, to admit the right of re-compromise for the annulment of contract relations by circumstantial changes or coordination of contract, but if any agreement is failed to reach, then to facilitate it to be controlled only through court. The most crucial method to ensure the contract observance in our Civil Law is to make sure the performance of a contract by way of the agreement of penalties. But our Civil Law is adverse to the principle of modern law based on the principle of contract observance and the parties' wish in that the Civil Law provides Article 565, presuming security deposit as a cancellation fee, so if any security deposit is given and taken, then either party can cancel the contract on its free will. Thus the application needs to be limited through the controversy of interpretation on Article 565, the Civil Law. In other words, the concept of the commencement of performance should be deemed to include the provision of performance as well prerequisite acts necessary for the performance,and unless there is a special agreement not to perform prior to due time, and it should allow the performance prior to the due time. Furthermore, it should be directed toward clearing up the distinction criteria between the schedule of indemnities and default penalty, and in case of urgent performance of obligations, making sure the contract observance by the agreement of default penalty.