계약해제시 원상회복의무의법적 성질

Abstract

A contractual termination is a legal system in which a contracting party terminatesa contractual relationship if one party can no longer expect the payment to befulfilled due to the other party’s default. If the contract is terminated, the right toclaim for the benefit of the other party will be extinguished and the obligation topay the benefit will be waived. As a result, If the parties have not yet fulfilled thebenefit, it is not necessary to fulfill the benefit, and If the benefit has already beenpaid, the benefit received should be returned to the original cost. In this case, thequestion arises as to the legal nature of the obligation of the parties to return thebenefits received from the other party. In the case of Korea, the legal nature of the obligation to restitute the originaldue to the termination of the contract is regarded as a special rule of unfairadvantage. However, the obligation to restitute is associated with the legal action ofthe contracting party, called the exercise of the right of termination. In other words,the liquidation of the contractual relationship for restitution is to clear the restituteobligation through the legal act of declaration of termination, not to clear the restituteobligation because there is no legal cause in the contractual relationship. Thus, theclaim that the restoration of the original due to the termination of the contract is aspecial return of the unjust gain is a matter of the theoretical premise itself. The legal problems of Korean customs and lawsuits are that they limit the effectof the termination of the contract to the creditor’s effect and do not take intoaccount the position of the legislator admitting the obligation to recover damages andthe obligation to recover the default. This is the reason why we have counted theGerman doctrines surrounding the retroactive effect. In this study, we examine the historical development process of the duty to restitute the original in the GermanCivil Code and the Japanese Civil Code which became the model of the KoreanCivil Code, and then examine the legal nature of the duty to restitute the original inKorea.