계약해제의 요건 -비교법적 법원리를 중심으로-

Abstract

Korean Civil Law classifies the requirement of rescission with the kinds of the breach of contract, not with the regulation, which has been influenced by German Civil Law. The non-fulfillment of contract is regulated as the requirement of rescission and the reasons of rescission should be required. However, because of each party's benefits, rescission has been the issue of discussion and will be required the structure of new system for the solution in the future. First, when debtor's non-fulfillment occurs fundamentally, rescission is desirable to be regulated to be done with the inquiring of rescission. So the requirement of rescission should be regulated widely like the protocol for the reform of Civil Law, only the plea of guilt should not be inquired because its function is different from the claim of damage. Secondly, the requirement of the right of rescission needs notification but it needs to have the cases of rescission with the exception out of notification. It is desirable in the system of Korean Civil law and in the concur of international trend that the regulation of the offhand rescission without the requirement of notification like the protocol for the reform of Civil Law uniformly. Finally, It is essential that the requirement of rescission should be regulated uniformly, with the basis of the regard of obligator's being damaged. Therefore the discussion and legislation for the requirement of the rescission should be considered international movement and then new trial of approach of rescission should be required for the proper theory and establishment of our Korean Civil Law.