독일민법에 있어서 원시적 불능 법리의 폐지 - 제311조의a의 입법과정을 중심으로 -

Prior German Civil Code had a provision that nullified initial impossibility in article 306 in accordance with the Roman Law axiom 'impossibilium nulla obligatio est.' On the contrary, Korean majority opinion and court decisions were of the position that initial impossibility is void even though the Korean Civil Code did not stipulate about nullifying initial impossibility. However, revision for modernizing the law of obligations in the year of 2002 led to the abrogation of article 306 within the German Civil Code which formally acknowledged the initial impossibility principle. A new provision providing that contracts which require initially impossible performance are valid and that the obligor may claim for damages amounting to the benefit of the bargain was devised in article 311a instead. Meanwhile, there is discussion about article 535 of the Korean Civil Code which stipulates that contracts whose objective is unattainable are void. Recently presented draft for the civil code revision contains a provision similar to that of the German Civil Code. This paper is a study on academic discussions regarding abrogation of the initial impossibility principle in the German Civil Code. The legislative intent beneath drafts of both the ministry of justice and congress during Germany's modernization of the law of obligations legislation process was examined and constructively criticized.