사정변경 원칙론의 일본에서의 연혁과 입법동향

In Japan, the principle of change of circumstances is justified by Katsumoto, and the theory established by Igarashi has a legitimate view, and in practice, the principle of change of circumstances has been accepted as an exceptional principle for the principle of contract compliance. However, the Supreme Court of Japan has been cautious about the application of the principle of change of circumstances. Compared to the strict position of the Supreme Court, the subordinate courts are relatively active in the principle of change of circumstances and emphasizes the role of the court by actively presenting the right to modify the contract in relation to its effect. In the course of the revision of the Japanese Civil Law, there was a proposal to prescribe the principle of change of circumstances. However, due to the prescription of the principle of change of circumstances, which is only an exceptional jurisprudence, There is a concern that it may be unreasonable and abusive and arbitrary, and that it is extremely difficult to prescribe principle of change of reason in terms of legal and analytical aspects as appropriate and reasonable words. It is pointed out that, even if the principle of change of circumstances is prescribed, the role of the court and the limitation of the judicial authority should be carefully examined in order to recognize the right of the contract modification as well as the cancellation of the contract. In the end, Japan decided not to prescribe the principle of change of circumstances in the amendment of the civil law. In the process of reflecting such diverse opinions of the various fields based on the theories and legislative trends of Japan, especially in the legislative work, there is a meaning and substantial implications as a comparative legal reference for the revision of the Civil Law. It is reasonable and appropriate to secure individual and concrete validity based on the new rules, as in the past, rather than simply stipulating the principle of change of circumstances. On the other hand, I think that the role of the court and the limitation of the judicial authority should be carefully examined in order to recognize the contract modification as well as the cancellation of the contract. Prior to the discussion of how to make the requirements and effects on the premise of changing the circumstances of the jurisprudence, we will conduct in-depth research based on the background and history of the introduction of the principle of change of circumstances in Korea, A fundamental consensus should be made about sufficient discussion and externalization of external risks and efficiency.