계약의 해제에 관한 소고 - PACL 작업을 중심으로 -
A Consideration On the Termination of Contract – focused on the PACL -
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This paper describes the process of PACL during the last 2 years and as of now PACL could be qualified, at least from my perspective, as just a ‘academic’draft. At the 6. Forum of PACL held in Seoul on last December the members discussed on the non-performance which presents the most difficult part of PACL. Apart from explaining all the details of the non-performance-related 30 provisions this paper focuses on the termination of contract. The termination of contract had better not be dealt as a question of nature but of legal-technical construction or institutional framework. CISG, PECL, BGB,Uchida-draft point out that all are trying to change the system or test a new system and solution of termination. That means we have various methods in approaching ‘termination'. I think that we hereby need to become aware of the modern meaning and function of pacta sunt servanda, economic analysis of cost caused by termination and consider each partner's interests. Especially there is strong needs to instruments for restraining termination as a remedy. First of all the breach of contract must be fundamental and it's not fundamental breach if the non-performance is a minor one. Then the termination of contract will only be possible for the buyer if the additional period(so called Nachfrist) has lapsed to no avail. It will give the seller a second chance to perform. At last the seller's right to cure will prevent the buyer from terminating the contract if the defect of goods is curable within a reasonable period of time and without undue inconvenience to the buyers(e.g. PICC Art.7.1.4). These instruments are, to a considerable extent, helpful to restrain the termination of contract, which is quite expensive from the perspective of social-economic costs. And termination of the contract has far-reaching impact on its partners. CISG Art. 25 defines a fundamental breach of contract as resulting in such detriment to the other party as substantially to deprive him of what he is entitled to expect under the contract, unless the party in breach did not foresee and a reasonable person of the same kind in the same circumstances would not have foreseen such a result. Here PACL follows it. The Unification of Asian Contract Law requires ‘time', ‘patience' and ‘cooperation'. It’s a long way to ascertain the identity of asian law. Many problems are to treat in concreto. Still things like the relation of non-performance doctrine and sales law on defect goods, more details about the consequences ‘after'termination and criteria of fundamentality of breach should be taken into account. Those will all make people to approach civil law, especially contract law, in easier and clearer way. The law exists for human being, not in reverse: Hominum causa omne ius constitutum est.
Abstract
This paper describes the process of PACL during the last 2 years and as of now PACL could be qualified, at least from my perspective, as just a ‘academic’draft. At the 6. Forum of PACL held in Seoul on last December the members discussed on the non-performance which presents the most difficult part of PACL. Apart from explaining all the details of the non-performance-related 30 provisions this paper focuses on the termination of contract. The termination of contract had better not be dealt as a question of nature but of legal-technical construction or institutional framework. CISG, PECL, BGB,Uchida-draft point out that all are trying to change the system or test a new system and solution of termination. That means we have various methods in approaching ‘termination'. I think that we hereby need to become aware of the modern meaning and function of pacta sunt servanda, economic analysis of cost caused by termination and consider each partner's interests. Especially there is strong needs to instruments for restraining termination as a remedy. First of all the breach of contract must be fundamental and it's not fundamental breach if the non-performance is a minor one. Then the termination of contract will only be possible for the buyer if the additional period(so called Nachfrist) has lapsed to no avail. It will give the seller a second chance to perform. At last the seller's right to cure will prevent the buyer from terminating the contract if the defect of goods is curable within a reasonable period of time and without undue inconvenience to the buyers(e.g. PICC Art.7.1.4). These instruments are, to a considerable extent, helpful to restrain the termination of contract, which is quite expensive from the perspective of social-economic costs. And termination of the contract has far-reaching impact on its partners. CISG Art. 25 defines a fundamental breach of contract as resulting in such detriment to the other party as substantially to deprive him of what he is entitled to expect under the contract, unless the party in breach did not foresee and a reasonable person of the same kind in the same circumstances would not have foreseen such a result. Here PACL follows it. The Unification of Asian Contract Law requires ‘time', ‘patience' and ‘cooperation'. It’s a long way to ascertain the identity of asian law. Many problems are to treat in concreto. Still things like the relation of non-performance doctrine and sales law on defect goods, more details about the consequences ‘after'termination and criteria of fundamentality of breach should be taken into account. Those will all make people to approach civil law, especially contract law, in easier and clearer way. The law exists for human being, not in reverse: Hominum causa omne ius constitutum est.
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