추완청구권 -민법개정논의를 중심으로-

Abstract

The right to enforce conforming performance is the creditor’s right to make the debtor cure of non-conforming performance where his performance does not confirm to the terms regulating the obligation. The prevailing opinion and the supreme court of Korea admit the right to enforce conforming performance. The right is a modification of the right to enforce performance and it is better for the purpose of the contract compared with the compensation for damages and the termination of the contractual relationship. This is the reason that the right to enforce conforming performance should be allowed. The Civil Law Revision Committee of the Ministry of Justice which is organized in 2009 decided to establish a provision in Article 388-2 to allow the right to enforce conforming performance. The right to enforce conforming performance is not always allowed where debtor’s performance does not confirm to the terms regulating the obligation. First, if there is a reason to exclude the right to enforce performance, such as the impossibility of performance, the right to enforce conforming performance is also denied. In addition, the reasons for exclusion of the right to enforce conforming performance should be admitted more broadly than those of the right to enforce performance. Because, in the case of non-conforming performance, the creditor has other remedies, such as the right to damages and the right to terminate the contract. Therefore, if the debtor’s burden or expense for the conforming performance is excessive relative to the profit of the creditor, the right to enforce conforming performance is not allowed. The creditor has the right to claim for damages or the right to terminate the contract in addition to the right to enforce conforming performance in case of the non-conforming performance. However, the conforming performance is more suitable for the creditor’s and the debtor’s interests than the compensation for damages or the termination of the contract. Therefore, the right to enforce conforming performance should be given priority over the right to claim for damages or the right to terminate. Article 395 and 544 provide that, in the case of a delay of performance, the creditor may not claim for damages or terminate the contract unless he allow the debtor a reasonable period to perform the obligation in advance. The Civil Law Revision committee decided that Article 395 and 544 are also applied to non-conforming performance. According to this, even in the case of a non-conforming performance the creditor may not claim for damages or terminate the contract before he allow the debtor a reasonable period in which to attempt to cure the nonconformity. In the case of non-conforming performance, there is a debate as to whether to recognize the debtor’s right to cure of non-conforming performance. There is no provision in the Civil Law to recognize the debtor’s right. However, according to the precedent, in case of non-conforming performance, the creditor may not claim for damages or terminate the contract before he allow the debtor a reasonable period in which to attempt to cure the nonconformity. This gives the debtor an opportunity to cure non-conforming performance. The Civil Law Revision Committee decided not to establish a new rule to recognize the debtor’s right to cure of non-conforming performance. Instead, the Civil Law Revision Committee decided to revise Articles 395 and 544 in order that those are also applied to non-conforming performance.