일본 민법상의 위임의 상호해지의 자유와 수임인의이익에 관한 고찰

Article 689 of the Korean Civil Code under the title of freedom of mutual termination of delegation, paragraph 1 states, “Delegation contracts may be terminated at any time by each party.” Paragraph 2 stipulates that “if one of the parties cancels at an unfavorable time of the other party without any unavoidable reason, the damage shall be compensated.” In addition to the general causes of termination, such as the achievement of the purpose, inability to perform, and expiration of the period, the delegation relationship is terminated by termination of the contract, death of the delegate, as a unique cause of termination. In particular, since the delegation contract is established based on the personal trust relationship between the parties, each party can freely terminate the contract if such a trust relationship is damaged, and if one party cancels the contract at an unfavorable time for the other party, the damage is compensated unless there is an unavoidable reason. In continuous contracts such as delegation, lease, and employment, benefits continue to occur, and the parties cannot deviate from the contract relationship just by performing a specific task, and often have to continue or repeat it for a certain period of time. In such a continuous contractual relationship, the termination of the contract by one party may conflict with the other party's contractual survival interests, so measures such as placing certain requirements on the termination of the contract or limiting the termination itself are necessary. In other words, two conflicting interests, freedom of departure from contractual relationships and guaranteeing the existence of contractual relationships, conflict, and it is an important task to resolve these relationships in harmony. Therefore, this study proposed an amendment to Article 689 of the Korean Civil Act on the freedom of mutual termination of delegation based on the case law and theories of Korea and Japan.