원시적 불능에 관한 민법 제535조의 개정에 관한 연구
Initial Impossibility and the Revision of Art. 535 of Korean Civil Code
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According to Art. 535 of Korean Civil Code(KCC), the party who knows or should have known that the performance of contract was initially impossible is responsible for the reliance damages to the other party. Some writers are pointing out the facts that new Art. 311a of German Civil Code allows the creditor to demand expectation damages in case of initial impossibility unlike the old German Civil Code, and Principles of European Contract Law(PECL) and Principles of International Commercial Contract(PICC) make the initially impossible contract valid and allow expectation damages to the creditor. They think Art. 535 of KCC has some problems and should be revised. To decide whether it is necessary to revise Art. 535 of KCC, firstly it should be examined that it is necessary to allow the creditor to demand expectation damages in case of initial impossibility. The justification of revising Art. 535 of KCC depends on the need for allowing the creditor to demand expectation damages. In short, when the debtor knows or should have known the initial impossibility of performance, the creditor should have a right to demand expectation damages, because the act that the debtor have entered into contract or have not informed the creditor what is concerned with the initial impossibility even though it knows or should have known the initial impossibility, is as blamable as the act that the debtor have made the performance impossible subsequently which allows the creditor to damand expectation damages. There is no reason to differentiate the remedies between initial impossibility and subsequent impossibility. The second problem of the revision of Art. 535 of KCC is concerned with validity of contract in case of initial impossibility. Even though the contract is invalid in case of initial impossibility, there is a possibility that the creditor could have a right of damages such as loss of profit through tortious liability. However the creditor couldn't recover the damages such as the lost value of performance itself through tortious liability. Such damages is recoverable only through contractual liability. So to allow the creditor to recover the damages sufficiently, contract should be valid in spite of the initial impossibility. If contract is valid and the creditor could recover the expectation damages in case of initial impossibility, the third problem is what is the essence of the liability of expectation damages of debtor. Such liability cannot be a liability of breach of contract, for which the fault that is concerned with the act of debtor breaching the contract is needed. But it is impossible to think of the act which amount to the breach of contract and the fault of that act in case of initial impossibility, because the debtor has no duty to initially impossible performance. So the liability of intial impossibility should be based on the guarantee that the performance is initially possible. Under the conclusion that the creditor should have a chance to recover expectation damages and the contract should be valid in case of initial impossibility, and that such liability should be that of guarantee, directions and content of revision of Art. 535 of KCC should be organized.
Abstract
According to Art. 535 of Korean Civil Code(KCC), the party who knows or should have known that the performance of contract was initially impossible is responsible for the reliance damages to the other party. Some writers are pointing out the facts that new Art. 311a of German Civil Code allows the creditor to demand expectation damages in case of initial impossibility unlike the old German Civil Code, and Principles of European Contract Law(PECL) and Principles of International Commercial Contract(PICC) make the initially impossible contract valid and allow expectation damages to the creditor. They think Art. 535 of KCC has some problems and should be revised. To decide whether it is necessary to revise Art. 535 of KCC, firstly it should be examined that it is necessary to allow the creditor to demand expectation damages in case of initial impossibility. The justification of revising Art. 535 of KCC depends on the need for allowing the creditor to demand expectation damages. In short, when the debtor knows or should have known the initial impossibility of performance, the creditor should have a right to demand expectation damages, because the act that the debtor have entered into contract or have not informed the creditor what is concerned with the initial impossibility even though it knows or should have known the initial impossibility, is as blamable as the act that the debtor have made the performance impossible subsequently which allows the creditor to damand expectation damages. There is no reason to differentiate the remedies between initial impossibility and subsequent impossibility. The second problem of the revision of Art. 535 of KCC is concerned with validity of contract in case of initial impossibility. Even though the contract is invalid in case of initial impossibility, there is a possibility that the creditor could have a right of damages such as loss of profit through tortious liability. However the creditor couldn't recover the damages such as the lost value of performance itself through tortious liability. Such damages is recoverable only through contractual liability. So to allow the creditor to recover the damages sufficiently, contract should be valid in spite of the initial impossibility. If contract is valid and the creditor could recover the expectation damages in case of initial impossibility, the third problem is what is the essence of the liability of expectation damages of debtor. Such liability cannot be a liability of breach of contract, for which the fault that is concerned with the act of debtor breaching the contract is needed. But it is impossible to think of the act which amount to the breach of contract and the fault of that act in case of initial impossibility, because the debtor has no duty to initially impossible performance. So the liability of intial impossibility should be based on the guarantee that the performance is initially possible. Under the conclusion that the creditor should have a chance to recover expectation damages and the contract should be valid in case of initial impossibility, and that such liability should be that of guarantee, directions and content of revision of Art. 535 of KCC should be organized.
참고문헌 (43)
- 곽윤직, "민법총칙" (2003), 박영사
- 곽윤직, "채권각론" (1997), 박영사
- 곽윤직, "민법주해 XI(채권 7)" (1995), 박영사
- 김민중, "채무불이행법의 재구성", 법조, 49(8) (2000), 법조협회
- 김상용, "민법총칙" (2009), 화산미디어
- 김형배, "채권각론" (1997), 박영사
- 김형배, "채권총론" (1999), 박영사
- 박영목, "이행불능에 관한 연구", 박사, 법학, pp.2008
- 박영복, "독일에서의 「原始的 不能制度」에 관한 論議", 사법행정, (429) (1996), 한국사법행정학회
- 박영복, "民法上 「原始的 不能論 의 再檢討", 외법논집, 3 (1996), 한국외국어대학교 외국학종합연구센터 법학연구소
- 법무부, "민법(재산법)개정자료집", 법무자료, 260 (2004)
- 안춘수, "하자담보법상의 문제점, -채무불이행책임설의 입장에서 특정물매매를 중심으로-", 민사법학, (11) (1995), 한국민사법학회
- 양창수, "원시적 불능론(一)", 법학, 27(2)통권 : 71 (1986), 서울대학교 법학연구소
- 양창수, "비교사법제도론" (1991), 대광문화사
- 이은영, "원시적 불능과 계약체결상 과실책임", 외법논집, 7 (1999), 한국외국어대학교 외국학종합연구센터 법학연구소
- 윤기택, "우리 민법에 있어서의 원시적 주관적 불능론", 법학논집, 11 (1996), 청주대학교 법학연구소
- 지원림, "채무불이행의 유형화에 관한 연구", 민사법학, (15) (1997), 한국민사법학회
- Claus-Wilhelm Canaris, "Die Reform des deutschen Schuldrechts : das neue Recht der Leistungsstörungen", 법학연구, 12(3), pp.279~297 (2002), 법학연구원
- 최흥섭, "원시적 불능론과 민법 제535조", 재산법연구, 9(1) (1992), 한국재산법학회
- "Abschlußbericht der Kommission zur Überarbeitung des Schuldrechts, hrsg. von Bundesministerium der Justiz, Bundesanzeiger, 1992", ~ (1992)
- Beale, H. G., "Chitty on Contracts, volume I, General Principles, 29th ed." (2004), Sweet & Maxwell
- Brox, Hans, "Allgemeines Schuldrecht, 22.Aufl." (1995), C.H.Beck
- Brox, Hans, "Allgemeines Schuldrecht, 28.Aufl." (2003), C.H.Beck
- "Bundesministerium der Justiz, Entwurf der Bundesregierung und der Koalitionsfraktionen für ein Gesetz zur Modernisierung des Schuldrechts, BT-Drucks 14", 6040
- Canaris, Claus-Wilhelm, "Die Reform des Rechts der Leistungsstörungen", Juristen Zeitung, 10(56) (2001)
- "Fikentscher, Wolfgang, Schuldrecht, 10. Aufl.", ~ (2006)
- Grunewald, Barbara, "Vorschläge für eine Neuregelung der anfänglichen Unmöglichkeit und des anfänglichen Unvermögens", Juristen Zeitung, 9(56) (2001)
- Guest, A. G., "Chitty on Contracts, volume II, General Principles, 29th ed." (2004), Sweet & Maxwell
- "Huber, Ulrich, "Leistungsstörungen", in: Gutachten und Vorschläge zur Überarbeitung des Schuldrechts, Bd. I, 1981", ~ (1981)
- Huber, Peter, "Schuldrechtsmodernisierung: Einführung in das neue Recht" (2002), C.H.Beck
- Marsh, P. D. V., "Comparative Contract Law" (1994), Gower
- Premier Voloume Obligations théorie générale, 8 éd, "Leçons de Droit Civil, Tome II", pp.1991, Mazeud, H., L.
- Medicus, Dieter, "Verschulden bei Vertragsverhandlungen, in: Gutachten und Vorschläge zur Überarbeitung des Schuldrechts, Bd. I", ~
- Medicus, Dieter, "Das neue Schuldrecht" (2002), C.H.Beck
- Ole Lando, "Principles of European Contract Law, Part I and Part II, prepared by the Commission on European Contract Law" (2000), Kluwer Law International
- Terré, François, "Droit Civil, Les Obligation, 5e éd." (1993), Dalloz
- Treitel, Guenter H., "Remedies for Breach of Contract(Courses of Action Open to a Party Aggrieved), International Encyclopedia of Comparative Law, v.7: contract in general" (1982), J. C. B. Mohr
- Treitel, Guenter H., "The Law of Contract, 9th ed" (1995), Sweet & Maxwell
- von Mehren, Arthur, "A General View of Contract, International Encyclopedia of Comparative Law, v.7: contract in general" (1982), J. C. B. Mohr
- Wolfgang, Ernst, "Müchner Kommentar zum Bürgerlichen Gesetzbuch, Band 2a, Schuldrecht Allgemeiner Teil, (§§323-327), 4 Aufl." (2003), C.H.Beck’sche Verlagsbuchhandlung
- Zimmermann, Reinhard, "The Law of Obligations(Roman Foundations of the Civilian Tradtion)" (1992), Kluwer Law and Taxation Pub
- Zimmermann, Reinhard, "Remedies for Non-performance: The Revised German Law of Obligations, Viewed against The Background of The Principles of European Contract Law", Edinburgh Law Review, 6(3) (2002)
- Zimmermann, Reinhard, "The Law of Obligations(Roman Foundations of the Civilian Tradition)" (1992)