민법 제536조 제2항(불안의 항변권)의 개정론

Korean civil code Art. 536 II. prescribes that at the contract in which one party has to perform first, the party can deny his first performing duty, if the other party’s performance is apparently difficult to occur. The right of suspension of performance is widely accepted in comparative law. In the PECL can the party of first duty withhold performance of its own obligation. The revision goes further to introduce the right of the other party to provide adequate assurance. Through this act the other party can stop the right of suspension of performance by the party to perform first. This tool makes possible the other party to encounter the right of suspension. The revision goes one step further. The party of first duty can demand adequate assurance of due performance. For the party of first duty are provided a couple of choices. He can wait passively in withholding his duties or can make a positive approach to break the deadlock if the other party makes no response. The comparative law review shows that in this case the party of first duty can terminate the contract to get free. But the revision shows reservations about this kind of solution. In my opinion it is too favorable for the party of first duty to give him the termination right. For originally he should perform first and accepted risk in doing it. Instead the revision proposes that the other party who do not give adequate assurance, lose his right of due date performance. That means that both parties have to perform simultaneously. The party of first duty can demand the immediate performance of the other party under the tender of performance of his own. If the other party fails to perform immediately, can the party of first duty go further to termination of contract, which needs demanding procedure.