계약해제 · 해지 및 그 효과 - 개정이유와 개정시안의 내용을 중심으로 -
Rescission, Termination and Their Effects in Contract - Focused on Contents of Articles of Amendment Bill and Reasons of Amendment -
정진명(단국대학교)
55권 1호, 259~296쪽
초록
Rescission in contract is a legal system that dissolves effectively established contract by only one party's expression. In Korea, there is confrontation between regressio theory and liquidation theory. Thus, the amended bill of civil law of 2004 excludes the regulation concerned with the effect of rescission from amendment articles. Current civil law regulates restoration duty through execution of rescission right in §548 as an effect of rescission taking protection regulation for a third party in a complementary part. And §553 regulates extinction of rescission right. But current civil law does not suggest any concrete standards about the restoration but regulates the duty of restoration as an effect of rescission. First, the article of rescission right in current civil law does not regulate any effects on incapability for restoration for the case of benefits lost or severely damaged. Second, in the case that a debtor can not return received benefits, current civil law does not elucidate the condition of money value or compensation. Third,discharge of contract is the first effect of rescission, nevertheless, current civil law does not regulate it as an established article. The amended bill of civil law of 2004 suggested the non-fulfillment of debt and termination(§544-3) and the change of circumstance and rescission․termination(§544-4) that are not regulated in the current civil law. The former legalizes the generalized regulation that permits rescission and termination of contract in the inevitable case separated from rescission by non-fulfillment of debt. The latter is for the solution of the real problem that a disadvantaged party can not help dissolve or terminate the contract one-sidedly, establishing the principle of contract change that has admitted for a long time. This paper investigates objects of amendment and their contents focused on current civil law and the amended bill of civil law of 2004,then suggests the bill of amendment that implies the congruity of Korean theories and cases.
Abstract
Rescission in contract is a legal system that dissolves effectively established contract by only one party's expression. In Korea, there is confrontation between regressio theory and liquidation theory. Thus, the amended bill of civil law of 2004 excludes the regulation concerned with the effect of rescission from amendment articles. Current civil law regulates restoration duty through execution of rescission right in §548 as an effect of rescission taking protection regulation for a third party in a complementary part. And §553 regulates extinction of rescission right. But current civil law does not suggest any concrete standards about the restoration but regulates the duty of restoration as an effect of rescission. First, the article of rescission right in current civil law does not regulate any effects on incapability for restoration for the case of benefits lost or severely damaged. Second, in the case that a debtor can not return received benefits, current civil law does not elucidate the condition of money value or compensation. Third,discharge of contract is the first effect of rescission, nevertheless, current civil law does not regulate it as an established article. The amended bill of civil law of 2004 suggested the non-fulfillment of debt and termination(§544-3) and the change of circumstance and rescission․termination(§544-4) that are not regulated in the current civil law. The former legalizes the generalized regulation that permits rescission and termination of contract in the inevitable case separated from rescission by non-fulfillment of debt. The latter is for the solution of the real problem that a disadvantaged party can not help dissolve or terminate the contract one-sidedly, establishing the principle of contract change that has admitted for a long time. This paper investigates objects of amendment and their contents focused on current civil law and the amended bill of civil law of 2004,then suggests the bill of amendment that implies the congruity of Korean theories and cases.
- 발행기관:
- 한국민사법학회
- 분류:
- 법학