不安의 抗辯權의 現代的 展開

Abstract

1. Over the last 30 years, the contract law has outstandingly developedin the world. In particular, including UN-Kaufrecht(CISG) adopted in 1980, New Civil Code of Netherlands enforced in 1992, New Civil Code (Obligation Law) of Germany, whose bill was announced to go through revisions in 1992 and came into effect in January, 2001, and Principles of European Contract Law (PECL) are very suitable materials worthy of reflecting on and referring to from the perspective of the contract law of Korea. This article will, in order of legislative outcomes, look into how the right of defense of uncertainty has developed among the outcomes of legislations since in the 1980s. Also it will obtain the theoretical source about conditions and effect of the right of defense of uncertainty in the Korean Civil Code. 2. In the case that obligation as a result of the effect of a contract has two separate performances, when the other party’s performance is at risk one party has traditionally been allowed to refuse its prior-performance of obligation to the other party in the name of the right of defense of uncertainty. However, the recent examination of comparative laws reveals that the right of defense of uncertainty has constituted the assumption of risk after the conclusion of the contract as the right to suspend its own performance regardless of the other party’s performance claim. Furthermore it shows that the right of defense of uncertainty allows one party to demand the other party to offer security and to permit the party to settle a contract itself. 3. The right of defense of uncertainty is not unfamiliar in the Civil Code of Korea. The article 536 (1) of Korean Civil Code provides "the right of defense for simultaneous performances", while the article 536(2) provides "the right of defense of uncertainty" by the way of refusing one party’s performance, stipulating "the preceding paragraph also applies to when there is an evident reason why the other party has difficulty in performing its obligation although one party shall perform its obligation prior to the other party". Even though the Civil Code of Manchuria as well as the Civil Code of Japan don’t have such a provision, the bill for the provision of the right of defense of uncertainty has existed from the beginning of the compiling of the Civil Code after the Independence of Korea and then was molded into a provision of the Civil Code. 4. This article proposes that, through the examination of the comparative laws about the right of defense of uncertainty, the revision of Article 536 of the Korean Civil Code shall reflect on the following; first, causes that "the right of suspension of performance"takes place shall not be limited to the causes after the conclusion of a contract. It is enough that the risk of a contract proves true only after the conclusion of the contract. Not only asynchronous performance but also simultaneous performance shall be allowed to suspend "the act of preparation of performance". Second, causes that "the right of suspension of performance"takes place shall not be limited to aggravation of the property condition. Third, the prior obligator shall notify beforehand that it will execute the suspension of performance so as to seek actual performance or maintenance. Fourth, the prior obligator who suspended his performance may demand the other party to offer security, whereas the other party obtains "the right of the offer of security" regardless of the demand of security. Fifth, when it is obvious that, without offering security, non-performance goes on until the obligation is due, the prior-obligator is allowed to obtain right of rescission. In these terms, we need to take a look into Article 536(2) of the Korean Civil Code again. The paragraph says "the preceding paragraph also applies to when there is an evident reason why the other party has difficulty in performing its obligation although one party shall perform its obligation prior to the other party." We can find that the above-mentioned first and second proposals don’t need to be reflected in the revision of Article 536(2) because the paragraph may flexibly cover the expression of the first and second proposals. However, regrettably, the other third, fourth and fifth proposals were excluded from the subject of revision of 1999.