전보배상에 대한 몇 가지 쟁점

One of the most critical topics in the civil law is compensatory damages. This is because it serves as the most comprehensive mechanism for resolving issues when there is a problem with contract performance. The following points regarding compensatory damage should be clarified: 1. In cases of delay in performance, the creditor acquires a “right to modify” (a formative right) that has the legal effect of extinguishing the original obligation and replacing it with a claim for compensatory damages at the time when the grounds specified in Article 395 of the Civil Act arise. In cases of refusal to perform, this right is acquired at the moment of refusal. Therefore, in both delayed performance and refusal to perform, the claim for compensatory damages arises at the moment the right to modify is exercised, and the timing of the damages assessment corresponds to the exercise of this right. 2. The ordinary damages for a claim for compensatory damages should include the cost of entering into a substitute contract. This cost should be calculated as a certain percentage of the value of the original performance. Thus, the principal amount of damages for a claim for compensatory damages (see Article 393(1) of the Civil Act) is not merely the value of the original performance but “the value of the original performance + the cost of entering into a substitute contract.” 3. If the claim for compensatory damage is reduced due to contributory negligence, the corresponding portion of the counter-obligation must also be extinguished. 4. In cases of impossibility of performance, the right to rescind the contract and the claim for compensatory damages arise simultaneously. In cases of delayed performance or refusal to perform, the right to rescind and the “right to modify” arise concurrently. When a claim for compensatory damages has already arisen prior to contract rescission (typically in cases of impossibility of performance), this claim persists even after contract rescission but is reduced in amount. If a claim for damages arises at the time of contract rescission (typically in cases of delayed performance or refusal to perform), this claim results from the exercise of the “right to modify.” Therefore, damages claims arising in connection with contract rescission are essentially identical to claims for compensatory damages resulting from non-performance.