채권자의 손해경감의무

Abstract

Generally, if a default occurs after the contract is established, the creditor has the right to exercise various legal remedies. This right may be robust, depending on the debtor’s default, unless the debtor cannot be held liable. The claim for damages are a common remedy found in all legal systems. However, ‘the duty to mitigate by a creditor’ on the damages is not common under the continental legal system. The simple answer is for the absence of this rule in continental law countries that the common law is based on strict liability while the continental law is on negligent liability. In addition, in the stage performing the contract, the creditor and debtor is imposed to make a duty not to commit negligence. The negligence by each party is trade off each other called the name of ‘comparative negligence’ or of ‘contributory negligence’. After the non-performing the contract, it is questionable if the creditor is imposed to make reduce the damage as a duty. In general, a duty is created by the agreement or law. Since this kind of duty may not be based on either of agreement or law, it is hard to call this a duty rather than good faith or legal consideration. Furthermore, in continental law, this duty is reflected either directly or indirectly. It is not a legal rule that can be easily cleared without understanding of the other legal system. If ‘the duty to mitigate’ may be used or found in most countries, it is probably because it is based on rationality. The key to this work is the rational understanding of the differences and whether they can be reflected as common elements in order to find common rules of law. This overcoming must eventually be based on rational thinking and understanding. In the contract law of continental law countries, the obligation of the creditor to reduce damages is a hard-to-find legal rule, but its universality and rationality make it invisible. Except for in Korea and Japan, a contract law on the duty to mitigate damages by a creditor in individual Asian countries could be easily found, and simultaneously witnessed in the international model laws.