이행불능은 이행지체의 종료 사유인가?

In this article, we looked at the starting point and end of implementation delays, focusing on cases where implementation failure occurred. First of all, according to the existing traditional view, as a condition for establishing delayed performance, which is the simplest form of default, it is in principle required that the original payment obligation be possible during the performance period, and of course, delay in performance is not limited to cases where the original payment obligation becomes impossible during the performance period. It is argued that even in the case of serious inability, only the legal principle of impossibility of performance applies from the time of inability, and the legal principle of delay in performance cannot be applied. In other words, if impossibility of performance occurs during a delay in performance of the original payment, the creditor may claim damages (compensation for delay) due to the delay in performance of the original payment only up to the date on which performance became impossible. Next, compensation for damages (compensation for compensation) due to the inability to perform the original payment, the market price (exchange value) on the date when performance became impossible, and delay compensation at the statutory interest rate from the date on which performance became impossible. It is engraved that you can claim . And by extending this legal principle to other types of default, the same result is drawn even when, for example, refusal to perform or incomplete performance occurs during delayed performance. However, although the above traditional view has some validity in light of the concepts of delay in performance and impossibility of performance, the historical reasons of the Civil Act, and each codified provision, etc., it is nevertheless difficult to readily agree with it. The reason is, first, among the types of default, delay in performance, impossibility of performance, and refusal to perform all mean no performance of the debtor's original payment to the creditor, and incomplete performance, which is another type of default, appears to be Although there is performance regarding the original payment, in that the performance is not ‘performance according to the contents of the obligation’ regarding the original payment, it cannot be said that there was essentially performance regarding the original payment to the debtor’s creditor. Second, Article 395 also stipulates that, on the premise that the original payment and compensation for delay therefrom can be claimed, compensation for compensation in lieu of the original payment and compensation for delay thereto can be claimed. If so, the creditor Considering that ① you can claim the original payment and compensation for delay therefrom, or ② you can claim compensation for transfer in lieu of the original payment and compensation for delay therefrom, you can claim compensation for transfer in lieu of the original payment and compensation for delay therefrom. Just because you can claim compensation for delay does not always mean you cannot claim the original benefit or compensation for delay. Third, above all, according to the conventional view, if failure to perform, refusal to perform, or incomplete performance occurs during the delay in performance. This is because unreasonable results are bound to arise depending on the compensation for delay in the original payment and the market price at the time of inability to perform. Therefore, the author believes that among the types of defaults required by the conventional view, ‘performance is possible’ in the case of delayed performance or refusal to perform, is not a requirement for its establishment, but an additional requirement necessary to give legal effect according to the individual requirements of each type. engrave Simply put, if impossibility of performance occurs during a delay in performance, the creditor can not only claim compensation for damages (compensation for compensation) and compensation for delay due to the impossibility from the time performance became impossible, but also the original Compensation for damages (compensation for delay) due to delay in performance of payment can still be claimed. However, according to the rule of good faith and the theory of difference, which is the dominant view on compensation for damages, compensation for delay in payment of original payment is a substitute payment (replacement compensation). A claim may be made only during a reasonable period of time necessary to prepare a profit, and at this time, the right to claim compensation for delay in damages (=compensation in lieu of the original payment) due to the inability to perform and the right to claim compensation for delay in payment for the original payment are not available. It is engraved that there is a relationship of competing claims with respect to the overlapping parts. In addition, if a refusal to perform occurs during a delay in performance, the creditor can naturally claim compensation for damages (=compensation in lieu of the original payment) and compensation for delay due to the refusal to perform from the time the refusal to perform occurs. Here, as in the case where impossibility of performance occurs during a delay in performance, compensation for damages (delay compensation) due to delay in performance of the original payment can still be claimed during the reasonable period necessary to prepare replacement benefits (replacement benefits). (It goes without saying that the right to claim compensation for delay compensation in lieu of the original payment and the right to claim compensation for delay compensation for the original payment are in conflict with each other with respect to the overlapping portion). In addition, unlike in the case of impossibility of performance, in the case of refusal to perform, performance of the original payment is still possible, so the creditor can request compulsory performance of the original payment and compensation for delay therefrom, and in addition, performance of the original payment is possible from the time of refusal of performance. It is also enshrined that delay compensation based on the legal interest rate for the market price (compensation compensation) at the time of refusal can also be claimed (of course, even in this case, the right to claim delay compensation for the original payment and the right to claim delay compensation for transfer compensation have the right to claim each other for the overlapping part) It should be viewed as being in a competitive relationship). In other words, if the creditor claims the original payment and compensation for delay despite the debtor’s refusal to perform, it is different from the case where the creditor claims compensation in lieu of the original payment and compensation for delay due to refusal to perform. , in claiming compensation for delay in the original payment, there is no limitation of ‘reasonable period of time required to prepare replacement payment (replacement benefit)’. Furthermore, the above legal principles of compensation for damages, which apply when refusal of performance occurs during delayed performance, should still be applied even in cases where compulsory performance of the original payment can still be claimed, such as in the case of transfer compensation under Article 395. engrave.