계약상 중대한 위반 조항의 해석

There is a controversy on how to interpret foreign legal terms when they are used in contracts governed by Korean laws. This article argues that we should focus on the parties' intents in defining these foreign legal terms, especially because this is a matter of contract interpretation. In the process of discerning intentions of the parties, we must take various factors into consideration, such as whether there are any similar legal terms in Korea and how such terms are interpreted, and how the legal terms at issue are interpreted in the jurisdictions where such terms originated. In this regard, this article examines how "material breach", a term used in common law jurisdictions, should be interpreted under Korean laws when used in domestic contracts. The term, "material breach" is most often used in termination clause in contracts. Korean law has developed its own doctrine on the requirements to terminate a contract. This doctrine is similar to the "material breach" doctrine in common law jurisdictions in that it does not allow a party to terminate a contract for merely trivial breaches of such contract. Therefore, the criteria used by the Korean courts in determining whether a party can terminate a contract can serve as a guide in interpreting when a "material breach" could be found. For sure, the meaning of and the criteria for finding a "material breach" in common law jurisdictions must also be considered. This article also addresses certain issues surrounding the usage of the term, "material breach" from a practical point of view.