일본 개정민법상의 계약부적합 개념과 책임에 관한 고찰

Abstract

This treatise examines contractual incongruity concept and the right to enforce conforming performance of contractual incongruity liability in trade of Japanese revised civil law effective April 2020. Japanese revised civil law basically amended the regulation about defect warranty liability of seller including establishment of regulation about contractual incongruity liability of seller in trade contract. The rough comparison on the relation with Korean civil law(property law) revision draft is as follows. ① Legal characteristic of defect warranty liability is equal to Japanese revised civil law regarding default liability theory. ② Japanese revised civil law introduced new concept called 「contractual incongruity」, deleting 「defect」 concept in defect warranty liability. The liability of seller on contractual incongruity unified as default liability irrespective of default type(default liability of incongruity benefit). In addition, defect warranty liability regulation of subcontract was deleted, and simultaneously trade regulation was completely applied to subcontract. These are different points from Korean civil law revision draft. ③ The opinions between two countries are basically same in legislation and legal characteristic of the right to enforce conforming performance. ④ Korean civil law revision draft prescribes the position of right to enforce conforming performance as one of the general relief measures of default, on the other hand, Japanese revised civil law prescribes it in trade part. ⑤ Japanese revised civil law admitted the superiority of subsequent completion in relationship between the right to enforce conforming performance and the claim for damages, on the other hand, there is no regulation about it in Korean civil law revision draft. In conclusion, there is certain gap between two countries in basic direction of revision. Korean civil law revision draft reflects theories and precedents maintaining the phenomenon, but Japanese revised civil law reflects theories and precedents through the revision. In this regard, the systematic comparative review should be needed in Korean civil law and Japanese civil law.