채권자의 협력의무에 관한 소고 - 대법원 2021. 10. 28. 선고 2019다293036 판결을 중심으로 -

Abstract

There are conflicting discussions on how to view the legal nature of the responsibility of Mora creditoris. It concerns whether the obligee's receiving behavior or cooperative behavior is categorized as obligation or responsibility. At the root of the discussion is the question of whether or not it is appropriate in terms of the obligor's relief to impose only certain legal responsibilities on the obligee in the case of Mora creditoris. Prior to the Supreme Court Decision 2019Da293036, the Korean Courts have applied the theories either of refusal to perform by the obligee or the obligee's burden to bear risk under the Article 538 of the Korean Civil Act to protect the obligor in the case of Mora Creditoris. The aforementioned 2019Da293036 decision is significant as it is the first Supreme Court judgment that recognized the obligor's right to rescind the contract on the grounds of Mora Creditoris. The aforementioned 2019Da293036 decision held that the obligation of receipt and cooperation should be recognized as the principal obligation of the buyer under the contract or the rule of good faith as a premise for the occurrence of the right to rescind the contract due to Mora Creditoris. When can such a principal obligation be recognized by the obligee in good faith? In my opinion, if it is necessary and justified to rescind the contract, it should be judged as non-performance of a principal obligation, and if it is not, it should be judged as non-performance of an incidental obligation or a breach of responsibility. Since the obligor has set the price assuming that the obligee will receive or cooperate in a timely and appropriate manner, if the obligee does not receive or cooperate in such way, it can be a kind of 'change of circumstances' case from the obligor's perspective. Therefore, if the equivalence of the contract has been considered completely broken due to the obligee's failure of receipt or other cooperation, so that the purpose which the obligor intends to achieve through the contract becomes jeopardized or it is difficult to expect the obligor to maintain the contract, it is fair to recognize not only compensation for damages but also a way to rescind from the contract. In that case such receipt or other cooperation behavior shall be regarded as the principal obligation. Although the contractual equivalence has not been completely broken due to the obligee's failure to receive or cooperate, if the obligor has suffered some damage, in other words, if the broken contractual equivalence can be preserved by granting compensation for damages, it should be regarded as an incidental obligation. Even if the obligee fails to receive or cooperate, if the obligor's contractual interests have been infringed or not, the obligee's receipt and other cooperation shall be considered as responsibility, not obligation.