원시적 불능에 관한 민법 개정시안에 대한 고찰

The article 535 of Korean civil code(KCC), which deals with the case of so called ‘initial impossibility’, is revealed as drastically changed in the draft of amendment of KCC. The draft made a kind of compromise between the simple deletion of Art. 535 and its existence as unchanged. On this decision seemingly the position of German civil code(BGB) made a considerable influence. How to approach to the initial impossibility provides diverse solutions as the comparative study shows. First, as the traditional continental codes and KCC we can maintain the stance that the initial impossibility makes the relevant contract void and the debtor is obliged only to compensate the reliance interest. Second, as the new BGB we declare that the contract with initial impossibility is valid and only the criteria of negligence are different. Third, as the international legislations, namely PECL or PICC one party can revoke the contract on the ground of mistake unless the party did not assumed the risk of it. Fourth, we can consider the initial impossibility as a type of culpa in contrahendo, which makes responsible on the ground to have provided the misinformation about his ability to perform. Personally I stand on this position. Finally, we can treat the initial and the supervening impossibility as the same and included in non-performance. So this solution leads to the mere deletion of the existent article. The draft of KCC, which took the second solution, declared that the initial impossibility does not make the contract void. But it provided a couple of difficult tasks of interpretation, which includes the scope of compensation and legal estimation of awareness and negligence on the side of creditor. The special circumstances of making a contract with initial impossibility need more prudential legal approach.