계약해제 요건으로서 본질적 불이행, 귀책사유에 관한 연구 －국제규범과 비교법, 현행 민법과 민법 개정안 검토 및 입법 제안－

Comparing the trends of international norms(e.g. CISG, PICC, PECL, DCFR) and other countries’(e.g. Germany, France, Japan) legislation as to the requirements of contract termination with that of Korean Civil Code and its amendment drafts could be a momentum with which the current status of Korean Civil Code and possible improvements can be examined. Furthermore, it also has significance when we do research into the way how accumulated theories and cases in Korea can be applied after the future Code revision which will certainly reflect the international trend. As to the objective requirement, international norms generally establish “fundamental non-performance” as the major termination cause and more detailed requirements(factors) can be categorized as follows : ① breach of agreement(contract internal, ex ante), ② deprivation of performance interest(contract external, ex post), ③ loss of reliability. While the revised French Civil Code requires sufficiently significant non-performance, Germany and Japan, separating ‘Nachfrist’ and ‘Non-nachfrist’ termination, keep the existing typology. The Korean amendment drafts seem to be influenced by the latter two countries. The simplification of termination causes is reasonable when we consider that it is the common international trend and the typology has some flaws like complexification of conflict. In addition, “fundamental non-performance” doctrine is not unfamiliar in Korean Civil Code, giving consideration to doctrine of subordinate obligation non-performance, clauses on liability due to a defect, ‘significance’ requirement in avoidance owing to mistake and doctrine about damages in lieu of performance. International norms provide ‘Nachfrist’ termination and other kinds of termination causes, but the essence of each cause(type) is just “fundamental non-performance”. This assessment is a premise for unified understanding about termination system and simpler legislation. With regard to subjective requirement(fault), excluding the responsibility of obligor is the general international trend. However, intention and negligence(foreseeability) are still playing important roles. If we find that the aim of that exclusion is the relief for the aggrieved party, not exclusion itself, it is not a problematic situation, rather necessary. Based on the above examination, I suggest the amendment on the requirements of termination as undermentioned : ① Type1) ‘Non-Nachfrist’ termination due to fundamental non-performance, ② Type2) ‘Nachfrist’ termination(without ‘minor’ requirement), ③ simplifying the articles(excluding some individual termination causes in international norms), ④ the clause of exception founded on balancing test, regarding intention, negligence, contribution and performance preparation, etc.