채무불이행의 효과 – 계약의 해제 - 한국민법의 개정시안을 중심으로 -

Whenever a party does not perform an obligation under the contract,the aggrieved party can resort largely to two remedies, namelycompensation and termination of contract. Korean civil code declares thatone remedy do not exclude the other one, which coincides with the trendof comparative law. This article deals with termination of contract aseffect of non-performance, focusing on the intents of draft of Korean civilcode. Discussing on the requirements of termination, there are two groups inthe view of comparative law. The international legislations like CISG,PICC, PECL have the root on the common law, which lay the'fundamental' non-performance on the center. This concept contributes toharmonize the conflicting interests of both parties on the right toterminate. And the fault of the aggrieved party is not a requisite oftermination. At the same time these legislations combine the delay ofperformance with the ‘additional period’(Nachfrist), which is the productof German law. Besides they prescribe the termination prior to time forperformance, the so-called 'anticipatory non-performance', which is aproduct of common law. On the other hand German law starts on the ground of traditionalclassification of non-performance, but substantially accepted the tendencyof international legislations and transformed itself. But on the judgementto allow termination German law seems to emphasize the combinationwith the procedural factor, 'additional period'. About the degree ofnon-performance it passively prescribes, so that in the slight breach the aggrieved party can not terminate. One of the noteworthy changes is thatGerman code discarded the fault-principle in the field of termination ofcontract. A comparative survey shows that there will be no great practicaldifference between two systems. The draft of Korean civil code takes asort of compromise in a regard that it provides the concept of materialnon-performance in a passive way and additional period as the mainfactor in deciding to terminate or not. The material intents of the draft can be summarized below. First of all the main shift of the draft is to break with the faultprinciple of termination of contract. It reveals the change of contracttermination from the idea of punishment on debtor to the discharge ofcreditor from the hopeless contract. So the draft removed the grounds offault. Secondly some have claimed the so called 'fundamental nonperformance'requirement be accepted as grounds of termination. The draftrefused to do it because it changes too much the system of responsibilityof non-performance. Besides the draft accepted the termination prior to time for performanceand refused to allow the termination in case of creditor's fault. In conclusion the draft seems to be familiar with german system, whichemphasizes the key role of additional period in the field of termination ofcontract. About the effect of termination we find just minor change. In case ofreturning the supplied property he has to return the earned fruit fromproperty. If the one party cannot return the received property, he has toreturn the amount for the value of property to the other party, unless theother party has fault in no returning of property. This amendments areprovided to clarify the present status of interpretation. The draft introduced a new provision on termination of durational contract, which has characteristic in the duration of contract. Terminationof this kind of contract has effect only in a prospective way, compared toretrospective effect of termination in general according to Korean case law. The draft provides a additional ground for termination of durationalcontract, namely the one party can terminate the durational contract incase that he cannot anticipate continuing existence of contract due to theloss of relational trust.