債務不履行을 理由로 하는 契約의 解除의 要件論

(1) The more fact that one man promises something to another creates no legal duty and makes no legal remedy available in case of performance. The contract is binding because the parties intend to be bound; it is their will, or attention, which creates the liability. I attempt to how that certan aspects of the requirement of cancellation of contract for non-performance of obligation. Therefore, I have canvassed various doctrine in CISG, English-American contract law, PECL, German Civil Act and Korean Civil Act. (2) If the contractual obligation is not performed, the aggrieved party can terminate the contract. In Korean Civil Act(KCA), it is a termination of contract. In CISG and English-American Law, so called Common Law, it is called rescission. Both, rescission and termination of contract, are similar in that they make the contract lose its effect. But the rescission in Common Law and the termination in KCA are different in two point. First, termination of contract in KCA is based on the non-performance of contractual obligation, the rescission in Common Law, however, is based on not only breach of contract, but on fraud, mistake and misrepresentation. Second, if confined to breach of contract, rescission is still different from termination of contract in Korean Civil Act, In Korean Civil Act, termination of contract make the contract lose its effect retrospectively. But the rescission in Common Law include not only the termination of contract, but also the refusal to perform, and rejection of performance. However, the non-performance should be fundamental or serious. But this principle has exceptions. If the duty not performed is a condition of entire obligation, then the aggrieved party can rescind the contract regardless of the seriousness of the non-performance. In Common Law, fault of defaulting party is not required. (3) The purpose of European Communities is to identify the problems resulting from the divergences of national contract law and to search for the possible action that European Communities should take from now on. According to UNIDROIT Principles of International Commencial Contract, Principles of European Contract Law and European Contract Code-Preliminary draft (Universtia Di Pavia), non-performance should be fundmental or serius, and fault of defaulting party is not required. In German Civil Act, Obligee can demand damage in case of obligor's fault, but the extent of obligor's excuse is reduced. And obligee can rescind contract regardless of obligor's fault, in case that the breach of contract of obligor is fundmental. (4) Korean Civil Act classifies the requirement of cancellation of contract with the kinds of the breach of contract, not with the regulation, which has been influenced by German Civil Act. The non–fulfillment of contract is regulated as the requirement of cancellation of contract and the reasons of cancellation of contract should be required. However, because of each party's benefits, cancellation of contract has been the issue of discussion and will be required the structure of new system for the solution in the future. Therefore, the discussion and legislation for the requirement of cancellation of contract should be considered by international movement and then new trial of approach of cancellation of contract should be required for the proper theory and establishment of our Korean Civil Act. (5) In Article 546 of KCA, it is required for the right of cancellation due to impossibility of performance for fault of obligor. But in Article 544 of KCA, it is not required for the right of cancelliation due to delay of performance for fault of obligor. In the theory of legislation, I insist that if the breach of contract is fundmental, obligee can cancellate contract, except impossibility of performance, without fault of obligor, so in Article 546 of KCA, 'for fault of obligor' should be deleted.