계약해제의 요건에 관한 비교법적 고찰과 입법론적 쟁점

The survey in this article reveals that how to prescribe the right to terminate the contract can be split into two groups. The international legislations like CISG, PICC, PECL have the root on the common law, which lay the ‘fundamental’ non-performance on the center. This concept contributes to harmonize the conflicting interests of both parties on the right to terminate. And the fault of the aggrieved party is not a requisite of termination. At the same time these legislations combine the delay of performance with the ‘Nachfrist’, which is the product of German law. Besides they prescribe the termination prior to time for performance, the so-called ‘anticipatory non-performance’, which is a product of common law. On the other hand German law starts on the ground of traditional classification of non-performance, but substantially accepted the tendency of international legislations and transformed itself. But on the judgement to allow termination German law seems to emphasize the combination with the procedural factor, ‘additional period’. About the degree of non-performance it negatively prescribes, so that in the slight breach the aggrieved party can not terminate. One of the noteworthy changes is that German code discarded the fault-principle in the field of termination of contract. A comparative survey shows that there will be no great practical difference between two systems. On this review this article suggests a couple of legislative issues which have importance in connection with the ongoing amendment work of our civil code. These issues include for example, if we accept the conception of ‘fundamental breach’ or not, reject the fault-principle as the prerequisite of termination, prescribe the termination prior to the time for performance, and so on. We always have to pay attention to systemic unconformity, which may be caused by undeliberate acceptance of specific theories from both systems.