프랑스민법상 도급에서의 위험부담에 관한 소고 - 우리 민법과의 비교를 중심으로 -

In Korean Civil law, which does not have special provisions concerning the counter-pay risk in work contract, the question of the transfer of the counter-pay risk is subject to Articles 537 and 538 of the Civil law. However, even in interpreting Articles 537 and 538 of the Civil law, the nature of work contract should not be forgotten. In other words, in a work contract, the contractor has the obligation and responsibility to complete the work the contractor is charged with one’s ability and risk. With regard to Article 538 of Korean Civil law stipulating that the counter-pay risk is transferred to the creditor in the event of creditor imputation and the creditor’s delay in receipt, the majority of theories and precedents focus on the fact that the contractor bears the risk of the counter-payment for a long period of time. So, they have been interpreted that the transfer of risk to creditors be easily executed. On the other hand, this approach might be hardly consistent with the nature of the work contract. In the end, as for the interpretation of "when the contractor becomes unable to fulfill the obligation due to the owner under Article 538 of Korean civil law" as a reason for transferring the risks to the creditor, we believe that there should be at least circumstances in which the result that would have been realized by a contractor becomes impossible due to an owner’s free act. Meanwhile, Korean civil law does not have a provision on the risk of goods in work contract, Therefore, unlike French Civil Law, it is difficult to distinguish between the case of the contractor providing the material and the case of the owner providing the material. Also, it is difficult to present the case of transferring the good’s risk followed by the transfer of an ownership of the material. However, I consider the recognition of the concept of the good’s risk important under Korean Civil Law, and it is also significant to interpret it based on the fact that the owner bears the good’s risk. Only then can it be clarified that the contractor bears the risk of the lost material even if the object is lost while working with the material provided by the contractor, and that the contractor does not assume responsibility for the material even if the object is lost while working with the material provided by the owner. However, the interpretation of Korean civil law, which does not have explicit provisions such as Articles 1788 and 1790, believes that the good’s risk is borne by the owner of the goods is based on the principle of “casum sentit dominus”.