이행능력의 결여와 이행기전 해제의 법리

Abstract

The amended Law of Obligations of Germany includes all sorts of benefit obstacles in its superordinate concept that is the violation of duty, such as the Law of Benefit Obstacles combines the Law of Warranty Liability. It is obvious that these contents of the amended Law of Obligations of Germany would have an enormous effect on the amendments works and interpretations of the Civil Law of Korea although they left a fundamental reassessment problem on the cancellation system in all the countries who had succeeded to the Law of Germany. There would be no room for application of Article 323, Clause 4, and the right of cancellation of the contract due to the impossibility of performance would be admitted in case it is certain to foresee the impossibility of performance or excessive expenditure for fulfillment. For this reason, as a matter of fact, it can be made a passive judgement in case Article 323, Clause 4 of the Civil Law of Germany is applied because it can actually be accepted as the anticipatory fulfillment refusal. However, as mentioned earlier, it is difficult to settle by the regulation of impossibility in case there are concerns about delay or delivery of the object with flaw in the building contract. In addition, the monetary debt cannot be settled by the regulation of impossibility of performance because there is no room to be an impossibility, and in this case, it is possible to cancel by applying Article 323, Clause 4, and Article 323, Clause 4 will be effective. It seems to me that Article 323, Clause 4 of the Civil Law of Germany has actually an important meaning to interpret the subject more widely such as treating the general problem of endangerment of the contract, not confining to the anticipatory fulfillment refusal. Then, it would be reasonable for the legal principles of the anticipatory fulfillment refusal to construct the legal principles as new type of benefit obstacles named 'the endangerment of fulfillment' subsumed by Article 323, Clause 4 of the Civil Law of Germany. However, the premise of constructing the legal principles should be examined further based on the difference between the amended Law of Obligations of Germany and the Civil Law of Korea, and it will be a task ahead of us.