민법 제535조의 제한해석에 관한 검토

Recently arose some issue in Article 535 of Korean Civil Code(KCC) with regard to amendment of KCC. This Section rules the contract invalid, when the performance of contract was initially impossible. But some scholar has a opinion that this section must be restrict applies to the objective impossibility. The opinion that KCC Section 535 must be applied only to the objective impossibility, is convincing with regard to equivalent treatment of the initial impossibility and subsequent impossibility makes some problems. Because some impediments that cause subsequent impossibility should not be subsumed by initial impossibility. But the distinction of subjective impossibility and objective impossibility dose not bring right or light resolution. First the distinction of subjective impossibility and objective impossibility is very difficult in some cases. Second the concept of subjective impossibility is too vague, to bring effective or right resolution. And some cases that must be included in subjective impossibility are regulated by avoid rule. The matter is rather confirmation of impossibility than objective or subjective impossibility.