금전채권에 관한 불확정기한과 정지조건의 구별기준 - 영미법상 pay-when 조항과 pay-if 조항의 시사점 - (대상판결 : 대법원 2003. 8. 19. 선고 2003다24215 판결)

This decision is a leading case on the distinction between an indefinite deadline and a suspension condition, and has played an important role in South Korea as a standard legal principle when the legal obligations created by a contract including an indefinite deadline or a suspension condition are not fulfilled. In other words, it contributed to preventing infringement of rights to creditors caused by unreasonably interpreting the indefinite deadline as a suspension condition. However, nearly twenty years have passed since the judgment was issued, and a reevaluation is needed. Under the current Korean Civil Code, the deadlines and conditions are privately autonomous decisions as an adjutant to the legal act, and furthermore, detailed definitions of the indefinite deadlines and suspension conditions are absent. Contrary to the original expectations, if the contract performance becomes difficult, the parties to the contract interpret the legal act in their own advantage, and disagreements are likely to arise, but the social cost is too high to leave this as a matter of interpretation of legal activity. Considering the fact that various systems are being elaborated so that payments can be made early in public and special laws such as the National Contract Act and Subcontract Act, as the division of labor has become commonplace and multi-level subcontracting structures are spreading in addition to construction contracts, I think there is a need for a definition that focuses on effectiveness. In this paper, after examining problems surrounding the interpretation of indefinite deadlines and suspension conditions, it is necessary to establish a standard for distinguishing between indefinite deadlines and suspension conditions in terms of practical practices regarding the risk of non-cash collection, strengthening the rights of creditors, and clarifying the payment timing. In addition, by reviewing various cases of application by country through the pay-when and pay-if laws under the British-American Act, we tried to suggest a reasonable standard for discrimination between indefinite deadlines and suspension conditions, which are frequently used in practice but ambiguous under the law.