계약금이 수수되어 해제권이 유보된 계약과 채무자의 기한의 이익 포기

There is a test case that one’s rescission right, set by Art 1 Article 585of Civil Law, is lapsed when one party implements the contract regardless of the other party’s intention before the contract term. According to this case precedent, the creditor’s rescission right is lapsed though there is a term in the contract since the contract may be performed before the term if there is no special happening. For this basis, when the one party performs (sets) to the implement, he or she charges the expense during the process and expects the fulfillment of the contract. At this stage, if the contract is recessed by the other party, then the party who has begun to the implement may have unexpected loss. For that reason, they say this situation should be prevented. However, the writer of this article think this prior case interpretation is disregarding the purpose of legislation, the Art.1 Article 585 of the Civil Law, and a provisory clause, the Art.2, Article 153 of the Civil Law. In addition, this interpretation distorts the both parties intention when the contract is signed. After the Art.1 Article 585 is issued and enforced, we generally assume that the one have a contract including the recession right until the contract is terminated. Therefore, debtor has a contract term benefit until the contract is performed and this benefit should be protected. Therefore, if creditor implements the contract before the contract term,debtors’ rescission right should not be lapsed. The rescission right is only lapsed on special cases when the debtor violates the fundamental rule of bona fides.