원시적 급부장애로 인한 손해배상책임의 근거와 범위

Article 535 of the Ministry of Justice's Civil Code Amendment Draft in 2013 prescribed that a contract aimed at the fulfillment of a initial impossibility is valid. Korean Supreme Court has applied Article 535 of the Civil Code to contracts that are invalid because of the prohibition of the law, or contracts that fail to comply with the procedures set by the law. Even if Article 535 of the Civil Code Amendment Draft applies, it would not be possible to uniformly recognize the validity of the contract for them. Therefore, it also requires a type-by-type review of whether the contract can be validated for its initial impossibility. Legal obstacles, such as the sale of non-partitionable land, will have no difficulty affirming the validity of the contract, as will the physical impossibility. However, if the law requires a certain procedure and the contract is invalid in violation of it, it would not be valid even under Article 535 of the Civil Code Amendment Draft. Because the possibility of performance can be said to be a motive for establishing a contract, there is a possibility of a cancellation due to an error herein. However, it is not reasonable for a party to be liable for damages under the Article 535 of the Civil Code Amendment Draft to be relieved of responsibility on the grounds of error. Therefore, if Article 535 of the Civil Code Amendment Draft applies, cancellation by mistake will have to be denied. Article 535 of the Civil Code Amendment Draft does not set the scope of damages, so there is still a possibility that damages may be recognized only within the range of reliance interest, despite the validity of the contract. I believe that the compensation under Article 535 of the Civil Code Amendment Draft should not be uniformly compensated for expectation interest or reliance interest. It is more important to define the appropriate amount of damages on a case by case basis. However, in principle, it is the principle of liability with fault, so it is generally accepted that the reliance interest is compensated, but if one party to the contract is taking the risk of impossibility (in the way as the liquidated damages), the scope of liability should be determined accordingly.