매도인의 하자 없는 급부의무

When the seller in sales of specific goods delivers goods that do not conform with the contract, the decision of whether the seller violated obligation or not was different, according to the standard – the legal liability theory or non-performance liability theory. Especially the legal liability theory, which is based on the specific goods dogma and theory of initial impossibility, did not admit the duty of delivery free from non-defect from seller of specific goods. But the specific goods dogma has a problem that it doesn’t coincide with the intent of the contracting parties or dealing sense, and the theory of initial impossibility is not also in accord with the agreement with contracting parties and the inner systemicity of civil law. And also since the duty of delivery free from non-defect of seller is affirmative, regardless of the types of sales goods, the comparative law perspectives can also accept the obligation to non-defect goods without any defects of seller of specific goods. The obligation to non-defect goods without any defects of sellers is important, since it can be the base of integrative understanding of the non-performance system and implied warranty system, and this can be the basis of method of remedy in regards to the cure of defect, among the remedies of lack of goods. But currently the opinion about the legal basis of obligation to non-defect goods without any defects is divided into two; it is based on the Art. 568 of Korean Civil Code, or it is based on the Art 580 of Korean Civil Code. But considering that the obligation to non-defect goods of seller is in contract with the buyer, it should be based on the Art 563 and Art 568 of Korean Civil Code. But by the legislative perspectives, it would be more proper to have related substantive enactments like German Civil Code.