경제적 불능에 관한 개념 정립의 필요성

Traditional classification about impossibility approaches impossibility toward impossibility ab initio vs impossibility subsequent, objective impossibility vs subjective impossibility, entire impossibility vs partial impossibility, On these classification, the scholars do not treat economical impossibility as impossibility. Instead they concentrate the focus on the relating facts surrounding contract from the social or trade point, and if they conclude the impossibility of contract, they call that impossibility as factual impossibility or impossibility on social standpoint. But writer asserts discernment whether objects of legal acts are economically possible or impossible precedes the discernment whether the object of a legal act are initially subsequently impossible, objectively or subjectively impossible, entirely or partially impossible. So the writer focuses the characteristic notion of economical impossibility in this article. Proper conclusion whether the object of a legal act is economically impossible cannot be procured by logical handling. Instead it requires the scrutiny about the possibility of return to original state. Cost-benefit analysis is a useful means for this sort of scrutiny, but decision of restoration need time. This means basic point of time for decision of impossibility should be postponed until analysis is completed. The ground principle of legal act cannot reach this conclusion. So the writer borrows the theory of innominate terms and business judgment criteria developed by Anglo-American courts for this purpose. The writer extends the application of economical impossibility theory to the disputes arising from non-legal acts.