채무불이행의 요건 - 최근의 민법 개정작업을 중심으로 -

Korea had once made an attempt to amend the entire Civil Code(General Provisions, Real Rights, and Claims) in 2004, but it did not workout well. After which, the Special Committee (“The Committee") for aRevised Draft of the Civil Code began its effort for another attempt in2009 and “The Revised Draft of the Civil Code" (“The Revised Draft") isscheduled to finish within a span of several months. At this material time,the Committee divided The Revised Drafts according to subjects instead ofintegrated drafts for amendments. The Committee that Ministry of Justiceorganizes has suggested Draft for Contractual Default. The requirements for Contractual Default are found in Part III of theRevised Draft. There are five parts under Claim sections, inter alia,General Provisions, Real Rights, Claims, Relatives, and Inheritance. Themajority's opinion suggested that the ambit of Contractual Default can betraditionally classified into categories of “Delayed Performance", “ImpossiblePerformance", and “Incomplete Performance". Essentially, the requirementsto establish contractual default in "Delayed Performance" are as follows:First, the time at which an obligation is due for performance; second, theperformance is possible to be carried out; third, no performance has yetbeen made; fourth, the fault of non-performance arises from thedefaulter; fifth, the default is unjustified (illegal). Further, the requirements for Contractual Default under the heading of “Impossible Performance" are following: First, the impossibility ofperformance arises after a claim is made ; second, the impossibility ofperformance arises from the defaulter's fault; third, the default isunjustified (illegal). The requirements for Contractual Default under theheading of "Incomplete Performance" are following: First, performance hasalready been made; second, the performance is not complete. third, theincomplete performance arises from the defaulter's fault. fourth, the defaultis unjustified (illegal). Therefore, the Revised Draft includes a number of new requirements toestablish a claim for contractual default. In particular, the revised versionof Article 390 provides that "If an obligor fails to effect performance inaccordance with the tenor and purport of the obligation, the obligee mayclaim damages; provided that this shall not apply to cases whereperformance has not made and where this is not due to the obligor'sintention or negligence." The current Article 390 indicates that it appliesto where performance has become impossible. However, this has beenapplied to all kinds of non-performance cases. In other words, an obligor isexempted from a contractual liability, if his non-performance ariseswithout his fault. The current Articles 390 and 546 regulate onlydefaulter's fault under the heading of "Impossible Performance". However,most legal scholars agreed that the defaulter's fault is the corerequirement for all kinds of non-performance in any contractual liabilitycase. That is why the revised version of Article 390 tries to remove theproblem of inconsistence within the Article itself and its interpretation. Article 388-2 is an example of a new Article to the Revised Code,which recognizes a right to cure in cases of “Incomplete Performance";whilst Article 388 (3) provides an obligee with a right to damage when aclaim on a right to cure is made. A conditional clause reads as “A party burdened with previousperformance cannot claim the defense for simultaneous performance whenthe other party provides sufficient security". This is an addition to the existing Article 536 (2) of the Revised Code. This addition is made toremove the conflict with the current Article 536 (2) of the Civil Code; “Ifone of the parties to a contract is bound to tender performance on hisown obligation first to the other party, and if there is any significantcause existing by which the other party's performance becomes difficult,the body of the preceding paragraph shall apply.”The current Article 535 stands for the invalidity of contract when theinitial purpose of contract is impossible to attain. However, the revisedArticle has changed its stand by recognizing that initial impossiblecontract is valid. It may allow creditor to recover damages based oncontractual liability. It does not mean that all creditors are protected underthe revised Article 535 (2). If a creditor was aware of suchunattainability, he may not be allowed to claim contractual damagesaccording to the revised Article 535 (2). According to Article 537, if the performance of an obligation by one ofthe parties in a bilateral contract becomes impossible by any cause forwhich neither of the parties is responsible, the obligor may not be entitledto counter-performance. Since this provision implies that the creditor mayterminate the contract, the revised Article 537 (2) clarifies to allow acreditor to terminate the contract. In conclusion, I believe that the amendments made in the Revised Codeare consistent with the international legal perspective of contractualdefaults and scholar' suggestions and recommendation, in particularregarding requirements to establish contractual default. I look forward toseeing that the Revised Draft will get a “green-go" in the NationalAssembly.