건설도급계약에서 도급인의 협력의무에 관한 소고 - 책무와 채무의 구별기준에 관한 입론-

Abstract

In such case, it becomes a problem how to distinguish the difference between creditor’s cooperative obligations as obligation and liability. It only can be distinguished by whether profits of debtor toward creditor’s cooperative behavior can be legally protected through the natural, normative, supplemental interpretation of the contract or the interpretation of the legislation (or the Trust and Good Faith). Specifically, creditor’s cooperative obligations is distinguished as either obligation or liability based on the necessity of creditor’s cooperation in fulfillment of obligation, debtor’s damage degree by lack of creditor’s cooperative behavior, replaceability of cooperative behavior, relevance of evasion of dispute and preservation of evidence on purpose of cooperative behavior, and relevancy of creditor’s duty to pay wages as cooperative behavior. When creditor’s cooperative obligation as liability is recognized through such process, contractual default liability is established based not only creditor’s responsibility for delay but also attributable reasons in case of breach of cooperative obligation. Therefore, debtor can claim creditor for compensation by breach of cooperative duty and cancel the contract for breach of cooperative obligation if the purpose of the contract cannot be achieved.