2013년 「채무불이행법 개정안」에 관한 검토 –불완전이행에 관한 제390조를 중심으로-

Abstract

This paper is focused on my opinion that aims to investigate problems in the provisions on the Non-performance especially Incomplete-Performance in the Draft 2013 of the Korean Civil Code, and to present a alternative proposal for this issue. To achieve the aim of this paper, in the first place I have analyzed the phase of the theory of Incomplete-Performance by investigating the system of regulations of the current Korean Civil Code on the Non-Performance, and by investigating whether or not the theory of Incomplete-Performance(it means an incomplete-performance or a positive violation of the obligatory right that provokes the expanded prejudice to creditor) is approved as a resonable theory of interpretation of the current Korean Civil Code, and by investigating whether the theory that insist the §390 of the current Korean Civil Code is a positive legal basis of the theory is right or not. Through these investigations I have arrived at the conclusion that while we admit the §390 of the current Korean Civil Code covers incomplete-performance, from this it is not necessarily drawn the conclusion that the concept of the Incomplete-Performance of this provision covers a positive violation of an obligatory right that provokes the expanded prejudice to the creditor that means primarily a tort liability, it should be regarded that whether the §390 of the current Korean Civil Code covers a positive violation of an obligatory right that provokes the expanded prejudice to the creditor or not is entrusted the theory and the judicial precedents. The Draft 2013 of the Korean Civil Code propose to stipulate the claim rights of “nacherfüllung”(it means a right of creditor to demand making subsequent completion) that has been dicussed for a long time in lecturing theory as an effect of incomplete- performance. However under the present circumstances that the theory and the judicial precedents about the claim rights of “nacherfüllung” is not yet clearly established, and what's more, the endeavor to revise the Law of Seller’s Warranty has been aborted, the revision of the §390 of the Korean Civil Code by stipulating the claim rights of “nacherfüllung” as a general effct of the Incomplete-Performance might provoke a serious disoder in the interpretation of the legal conditions and effect of the claim rights of “nacherfüllung” in relation with the Seller’s Warranty. Therefore I think that it is desirable to delete temporarily the provisions about the claim rights of “nacherfüllung” in the Draft 2013 of the Korean Civil Code, and to stipulate it after ending full discussion about the claim rights of “nacherfüllung” and when the Law of Seller’s Warranty will be revised.