건설도급계약상의 위험부담의 분배

Abstract

The contract for work that has the nature of a bilateral contract occurs a problem of the risk. The problems of liability for risk are the payment of remuneration and the apportionment of a loss when contractor's work is impossibility of performance by his burdenless reason in a construction contract. The contractor shall bear the risk caused by indeterminate elements because the obligations of contracts is to complete the work. But it is too harsh for the contractor to bear the risk unilaterally in disregard of the distinctiveness of construction work. And when the obligation to accomplish a work is able to compete with partial inability, the burden of risk for increasing expense is discussed. According to case law and theory, before deliver a work over to a person who ordered any work after complete it, the risk has been burdened by the debtor. But considering the characteristics of debt in contract for any construction work, this explanation is not convincing. Because it is difficult to make all kinds of risk elements forecast when the interested parties signed construction contract. And this is supplemented by several types of construction work standardized contract. In Germany,the risk distributions are specified by the established risk domain. The risk of contract for any construction work is distributed to the parties on the basis of the origin of the various risks appeared in several causes depending on the conditions of the contract. Therefore, we need to be considered with the variety of risk factors that affect impossibility of performance, the time required for the fulfillment and risk factors arising from person who ordered any work in the distribution of risk. The risk of construction contract should be distributed with taking account of what the risk have occurred from any cause in performing the construction contract. And we should give shape to the risk distribution of construction contract as the German civil code and the stance of a risk domain theory.