일본 개정민법상 매수인의 추완청구권에 관한 고찰

Abstract

Theoretical interest regarding the issue of the buyer's right to enforce conforming performance in the contract of sale is continuously increasing and the right to enforce conforming performance is significant within the whole civil code system as it serves as a connection in the efforts to integrate liability for warranty and non-performance of obligations. The right to enforce conforming performance is the right of the obligee to ask for complete performance in case the obligor provides incomplete performance. Above all, the question of whether to recognize the right to enforce conforming performance should be discussed. Secondly, provided that the right to enforce conforming performance is acknowledged, there is the matter of its scope and contents. Additionally, the relationship with other remedies such as compensation of damages and contract rescission should be examined in case of incomplete performance. There is a need for comparative analysis in order to review the legal issues rising out of the right to enforce conforming performance. This paper examined the revised version of the Japanese civil code as the subject of comparative analysis. The Japanese civil code was selected as it was a legislation influential to our civil code and there had been a detailed scrutinization regarding the right to enforce conforming performance in its revision process. The Japanese civil code did not contain any provision about the right to enforce conforming performance ever since its enactment in 1896 until its revision in 2017. However, a major revision upon the provisions referring to obligations took place based on the law revising a part of the civil code that was established in 2017. This revision reorganized liability for warranty to become the seller's responsibility for non-conforming performance as one of non-performance of obligations. In addition, the provisions regarding the buyer's right to enforce conforming performance was newly stipulated.