채무불이행으로 인한 손해배상에 관한 민법개정안 - 2013년 민법개정위원회에서 확정된 개정안을 중심으로 -

1. The law on non-performance of obligation is at the heart of Koreancivil law. The law of non-performance of obligation has been one of themost controversial areas in Korean law, and courts have released a largenumber of decisions related to this issue, and the Committee for theReform of the Civil Code (hereinafter “the Committee”), established in2009, has spent much time and effort to amend the law ofnon-performance of obligation since 2010. Due to the significance of thelaw on non-performance of obligation in the civil law, modifying the lawof non-performance was among the most important issues in theamendment of the Civil Code. The amendments the Committee finallyadopted at the plenary meeting don’t include any dramatic reformation ormodernization, but make major changes to the law of non-performance ofobligation. Those amendments suggested in the plenary meeting of the Committeein 2013, specifically those related to non-performance liabilities, will bereviewed in this international academic symposium hosted by the KoreanAssociation of Civil Law. The purpose of this symposium is to gatheropinions about the suggested amendments so that scholars cancommunicate opinions for better forms of amendments. Through thissymposium, I hope to have chances to listen to diverse opinions of the prominent scholars we invited from Germany, France, and Japan, and alsofrom Korean scholars and judges as well. 2. Currently, the Civil Code has ten provisions on damages fornon-performance of obligation, which can be summarized as follows:(1) Article 390 states the fault-based principle of liability, stating that“if an obligor fails to effect performance in accordance with the content ofthe obligation, he is liable to compensate loss caused by thenon-performance.” Some articles of the Civil Code provide detailed ruleswith regards to delayed performance, such as the timing of delayedperformance (Article 387), compensation during the delay (Article 392),and requirement of compensatory liability (Article 395). Since there is nosuch provision for incomplete (defective) performance nor for anticipatoryrepudiation, so the courts have applied Civil Code Article 390 to thesecases as well. (2) Article 393 defines the scope of compensation for ordinary lossesand losses that have arisen through special circumstances. For the latter,the article allows compensation for such losses only when the losses wereforeseen or foreseeable. Article 394 states that the compensation should bepaid in money, in principle. Other provisions set the principle ofcontributory negligence (Article 396), the special rules as tonon-performance of monetary liability (Article 397), liquidated damages(Article 398), and obligor's subrogation to the obligee owing tocompensation for damages (Article 399). 3. In 2013, the plenary meeting of the Committee decided to amend sixprovisions of the current Civil Code and to add two provisions to the CivilCode and one provision to the Civil Procedure Act. The amended ornewly-added provisions are as follows:(1) The second part of Article 390 [non-performance of obligation and compensation of loss] has been amended to explicate that the nonexistenceof intent or negligence provides immunity for all types of non-performanceof obligation. (2) Article 392-2 [compensation for expenses] has been newly added toprovide statutory grounds to seek compensation for expenses. (3) Article 394 [method of compensation] has been amended to statethat compensation should be given in monetary terms as a rule, but othermethods of compensation are allowed when appropriate. (4) The title of Article 395 has been amended from “performance delayand compensatory damages” to “compensatory damages.” This Article isalso amended to specify conditions of compensatory damages forperformance delay, and add a new provision that compensatory damagesare allowed for anticipatory repudiation and incomplete performance. (5) The title of Article 396 has been amended from “contributorynegligence” to “consideration of obligee’s negligence” and specifies theconditions about when this provision applies. (6) Article 397 [special rules as to non-performance of monetary debt]has been amended to provide clear rules. (7) The title of Article 398 has been amended from “liquidateddamages” to “agreed payment for breach of contract”, and this Articlehas been amended to allow reduction of penalty for breach of contract aswell as reduction of liquidated damages. (8) Article 399-2 [the right to vicariously claim compensation] has beennewly added to provide the requirement and effect of the right tovicariously claim compensation and to state its relationship withcompensation. (9) In the Civil Procedure Act, Article 202-2 [determination ofdamages] has been newly added to determine the amount of damages inconsideration of the result of examination of evidence and purports ofpleadings in whole when damages cannot be determined. The subcommittee discussed and proposed the following possibleamendments as well, though the Committee decided not to adopt them:(1) To make Article 392-2 [content of damages] clearly state thatunder Section 1, recovering expectation interest (Erfüllungsinteresse)should be the principle of compensation, and under Section 2, the types ofdamages are categorized as lost profits, non-pecuniary loss, and futurelosses that are likely to occur. (2) To amend Article 393 [extent of damages] to define when todetermine whether losses arising through special circumstances wereforeseeable or not. (3) To add Article 393-2 [damage resulting from substitute transaction]to decide how to calculate damages in case there is a substitutetransaction. (4) To add Article 396-2 [duty of obligee to reduce loss and expensesto reduce loss] to define obligees’ duty to reduce loss and to allow obligeesmaking claims to recover expenses to reduce loss. 4. Currently, the Committee has decided to amend the Civil Coderegarding the law of non-performance of obligation. As a result, theamendments are not expected to bring fundamental changes to thecurrent law of non-performance of obligation. However, the amendmentswould cause significant changes to the civil law, especially with regard tosuch issues as compensation of expenses, anticipatory repudiation, authorityof the court to determine damages when damages cannot be calculated,and the right to vicariously claim compensation. Discussions among Korean lawyers and scholars seem to have been themajor source of such suggestions, but it seems that the German lawprovided important inspiration for the suggested amendments – some majoramendments are very similar to civil law and civil procedure law inGermany. Some proposals to make a important change to civil law based on the model rules such PECL, DCFR, etc. ultimately were not accepted. The suggested amendments are waiting for final approval from theDepartment of Justice of Korea. The Department of Justice will continueto collect opinions from academia and lawyers. If the National Assemblyin Korea passes these amendments, the suggested amendments will be thefirst amendments made to the obligation law of the Civil Code since itsenactment in 1958. These amendments are expected to provide betterbalance to Korean civil law, though Korean academia and lawyers wouldstill have to continue discussing how to improve the law onnon-performance of obligation.