대만민법의 이행거절(拒絶給付)

This article is about anticipatory breach in Taiwan Civil Law. It examines the significance of anticipatory breach as an new type of breach of contract and its requirement and the effects. An anticipatory breach occurs where, before the time comes for one party to perform his part of the contract, he declares that he is not going to do so. In Taiwan contract law，on the event of a repudiatory breach of contract the innocent party was entitled to choose to either accept the repudiation (within a reasonable time) or to affirm the contract. In Taiwan law, non-performance covers cases of impossibility, delay in performance, positive breach of contract, and an anticipatory breach is included in it. The article 227 of the Taiwan civil Code as a legal basis was admitted before the Civil code Reform in 1999. But the article was amended as follows : If a debtor incompletely performs his obligation by reason of a circumstance to which the debtor is imputed, the creditor may execute his right according to the provisions of the default or the impossibility of the performance(article 227，subsection 1). In addition to the injury arising from the incomplete performance in the preceding paragraph, the creditor may claim compensation for other injuries arising therefrom, if any(article 227，subsection 2). So，now the anticipatory breach is regarded as legislative shortcomings, yet is admitted as a type of Non-performanc by analogical application. The anticipatory breach can be divided between before and after the period of performance. In particular, a party which is entitled to withhold its performance and to terminate the contract. He can also pursue the damages by non-performance. Above this，an action demanding future performance may not be initiated unless it is necessary to make such demand in advance(article 246), so it is also admitted as its effect. Moreover，comparative negligence is also regarded by scholars. Based on this comparative study of two countries, we also intends to give a preliminary suggestion to the anticipatory breach. For this analysis, after admitting its speciality as a new type of breach of contract, we analyse the requirements and the effects of an anticipatory breach in Korea in brief. Finally, this study surveys the drafts of Korean civil Code(2004, 2013).