동시이행의 항변권에 관한 일고찰

Abstract

An article 536 of the Korean Civil Code was institutionalized the connection in performances which both parties should carry out in reciprocal contract on the ground of equity. But if not in reciprocal contract, most of the jurists and courts approve the existence of the Defence of Simultaneous Performance when both duties are in relation of concurrent condition. Moreover many jurists admit the prohibition of offset and the absence of liability for delay in performance as its effects including the right of refusal. Then the theories on Defence of Simultaneous Performance cause many confusions as a result of a chaotic state in the classifications of theories and in explanations of those. That's why it is necessary to give supplementary and logical explanations about its nature, the beginning period and the effects. In addition, it needs to arrange the confusions in the classifications of theories and the explanations of those. To achieve those purposes, I tried to systematize the classifications of theories and point out their logical flaws in this paper, whereupon the conclusions are drawn including: ⓐ The Defence of Simultaneous Performance and the relation of concurrent condition may be distinguished. ⓑ The Defence of Simultaneous Performance is nothing less than a the right of refusal performance. ⓒ The prohibition of offset and the absence of liability for delay in performance are only the effects of the relation of dependence on a bilateral benefit, not of Defence of Simultaneous Performance.