국제건설계약에서 하자담보책임에 대한 비교법적 고찰

Abstract

Where a contractor of an international construction contract completes construction work which is later revealed to have an issue or a flaw, the most efficient and recommended manner of handlingthis matter would be to have the contractor resolve the problem on its own. It is even more vital to clearly provide the details of the obligations borne by the contractor in an international construction contract where the parties are from different countriesand operate under different legal systems. It is common for the standard terms of the construction contract or the international construction contract executed between the parties to not stipulate a provision with respect to the type ofproblems or flaws that qualifies as a defect. Thus, this matter is frequently decided by the governing law of the contract. Given the nature of defects liability borne by the contractor, the governing law of the contract also determines, among others, (a)whether specific performance is allowed, (b) whether defects liability is strict liability, (c) the relationship between defects liability and contractual liability, (d) the period of defects liability, and (e) measures that may be taken by the employer incase the contractor fails to cure the relevant defects. This Paper examines the laws of the Republic of Korea that pertain to various working-level issues involving defects liability in an international construction contract, such as those mentionedabove. It then assesses the relevant laws of the United Kingdom (a common law country) and those of Germany, France, and Japan (civil law countries) in comparison. In common law countries, a defect is generally considered to be a condition that differs from contractrual agreement. Therefore, defects liability is considered a breach of contract, and absentspecial circumstances, it is difficult for the employer to seek specific performance from the contractor as a legal remedy. Moreover, the burden is on the employer to establish the contractor’sbreach of duty of care in order to hold the contractor liable for defects, unless the contract expressly provides otherwise. Finally, in addition to the meaning of defects liability period as ‘a period of time during which the employer may request the contractor to cure the defects,’ defects liability period also refers to ‘a period of time during which the contractor may cure the defects.’ In contrast, civil law countries generally consider defects as including objective defects as well as subjective defects, even though the specifics may vary by country. Furthermore, the employeris in principle allowed to seek specific performance from the contractor to cure the defects, which imposes strict liability on the contractor. Finally, while the defects liability period may have less legal significance in the civil law system than in thecommon law system, the period of notification of defect is still significant, as it refers to ‘the period of time during which the employer may exercise or waive its rights relating to defects liability.’ In consideration of the independent and non-causal nature of maintenance bonds that are issued in the form of independent bank guarantees for the purpose of covering defects liability in internationalconstruction contracts, this Paper also examines measures that a contractor could take in order to prevent payment under maintenance bonds once they are already issued. A party that executes an international construction contract and performs construction is advised to provide due effort towards understanding the governing law of the contract as well as the lawsof the country where the construction takes place, and prescribe contractual terms that are most favorable to that party.