「Common Frame of Reference 초안」 중 채무의 불이행에 관한 규정의 고찰

Abstract

European Committee, to enhance the integrity EC acquis, proposed the Common Frame of Reference(CFR) in "Communication from the Commission to the Council and the European Parliament on European Contract Law" 2003. CFR has several purposes; to propose general frame of uniform terms and rules in reviewing the revision of EC acquis; to be the reference in reviewing the necessity of optional instrument in the area of contract. European Committee gave an order to the Study Group on a European Civil Code(the Study Group) and the European Research Group on Existing EC Private Law(Acquis Group) to make a draft of CFR. In 2007, the Study Group and the Acquis Group submitted the outcome to the European Committee, and the Draft of Common Frame of Reference(DCFR) was open on the internet and published February 2008. However that DCFR was an interim outline edition, and it didn't contain Comment and Note. The final edition will be published on October 2009. Book II, III of DCFR is based on the rules of Principles of European Contract Law(PECL), but there is some difference. The deviations from PECL is due to the different structure and the coverage. For example PECL should be broadened to embrace the matters of comsumer protection. DCFR was also based on the Principles of European Law made by Study Group and the Acquis Group and its output contributed to the task of ensuring the EC acquis was properly reflected in DCFR. Book III of DCFR deals with the non-performance of contractual obligation and most of rules originated from PECL. The rules of non-performance in DCFR have two characteristics; firstly it rules out the fault principles and secondly it unifies the contractual liability. DCFR doesn't require fault for contractual liability. It means that the obligor is liable for non-performance not because it doesn't act with due care but because it has promised to perform. DCFR unifies the contractual liability. It means that DCFR has a unitary concept of "non-performance", which is failure to perform. "Non-performance" is a common requrirement for the remedies such as damages and termination of contract, and it includes the cases of initial impossibility, defects of things and failure of acceptance. DCFR is just the outcome of two research groups and not EC acquis. However it seems clear that DCFR is drafted to be a basis of CFR as an optional instrument of EC in the future.