계약의 해제⋅해지, 위험부담, 사정변경에 관한 민법개정안

Abstract

The rescission and termination of contract, which Part III (entitled “Claims”) of the Korean Civil Code (“Civil Code”) prescribes, are the most typical causes that end the contract. Risk of loss too is closely related to the ending of the contract, as it deals with the discharge of obligations arising from the bilateral contract. Furthermore, rescission and termination of contract due to change of circumstance have been recognized by academics and courts. These provisions, which regulate the ending of the contract, have formed the core of Part III of the Civil Code. The Committee for the Civil Code Amendment under the Ministry of Justice was launched in February 2009. The Committee was responsible for drafting an amendment to the Civil Code, and completed this mission upon the plenary session held on February 17, 2014. The resulting body of amendments includes the amendment on the rescission and termination of the contract, risk of loss, and change of circumstance. This paper will introduce the amendment on the rescission and termination of the contract, risk of loss, and change of circumstance, and discuss the implications of this particular amendment. Moreover, in this paper, I tried to share the thought process I personally went through as I discussed and drafted the amendment as a Committee member, and demonstrate how the Committee developed the amendment with each successive phase of drafting. The amendment adopts a general provision on requisites for rescission of contract, and excludes the responsibility of the obligor from the requisites. The provision on rescission or termination prior to the time for performance is introduced; and the principle of the change of circumstance is stipulated. This is indeed a significant change for the Korean civil law. The amendment allows the parties to choose either rescission and termination of the contract or risk of loss when one party can not perform due to any cause for which neither of the parties is responsible. The parties can also choose either adaptation or rescission/termination of the contract when change of circumstance occurs. This paper makes an assessment of the amendment on the rescission and termination of contract, risk of loss, and change of circumstance, and concludes that whereas the requisites for the aforementioned provisions stipulated in the amendment make much sense, the effects of these provisions or how these provisions relate to other remedies seem less convincing in their current form.