일본 개정민법상 “채권의 효력: 채무불이행책임 등”에 관한 규율 - 채무불이행에 의한 손해배상책임의 요건과 효과를 중심으로 -

Abstract

The purpose of this paper is to review the legislative reason of major amendments to the "Liability for damages by non-perfomance of obligations, etc." in Japan's revised Civil Code promulgated on June 2, 2017 and enforced from April 1, 2021. At first, the revised Civil Code established a new regulation on impossibility of performance (Article 412-2 (1)) to secure a balance with the regulation on delay of performance (Article 412), and a new clause to the effect that damages under Article 415 of the revised Civil Code can be claimed in the event of a so-called "initial impossibility" (Article 412-2 (2)). In addition, the requirements of Article 415 regarding liability for damages by non-performance of obligations were revised to deviate from the so-called "principle of negligence liability" as a criterion for determining the cause of liability (paragraph 1) and the requirements for damages in lieu of performance were newly established in paragraph 2. Furthermore, provisions concerning the effect of liability for damages by non-performance of obligations were revised. That is, the requirements of Article 416 concerning the scope of damages centered on "foreseeability" were revised to be more prescriptive, and in the event of impossibility of performance, a judicial precedent law allowing creditors to claim compensation obtained by debtors due to the impossibility of performance is newly stipulated on Article 422-2. I think two implications for Korean civil law can be derived from the above review. First, in relation to the judgment of reasons attributable to or exempted from liability for damages by non-performance of obligations (Article 415), the criteria for judging reasons attributable to the binding force of the contract were presented instead of so-called negligence liability. Second, through discussions on the revision of the scope of damages, it became clear that Article 416 of the Japanese Civil Code is a matter of determining the scope of damages among damages that have a factual causal relationship.