이행청구권과 전보배상청구권의 병존: 그 유동적 상태와 채무전형의 문제

This study explores legal solutions for the “fluid state” (Schwebelage) arising from the coexistence of the right to claim performance, damages in lieu of performance, and rescission under the Korean Civil Code. While the Civil Code broadly guarantees the creditor’s choice after a formal notice, the creditor’s silence leaves the debtor in an unstable position, forced to prepare for all potential remedies simultaneously. To balance these interests, this paper examines the German doctrine of “elective concurrence (Elektive Konkurrenz)”. This doctrine benefits creditors by recognizing the right of modification (ius variandi), allowing them to switch between remedies. Conversely, this study rejects the analogical application of Article 381(2) of the Korean Civil Code regarding the transfer of the right of choice to the debtor, as it excessively infringes upon the creditor’s prerogatives. Instead, debtor protection should be sought through the doctrine of “purgatio morae” via the debtor’s tender of performance. Ultimately, to resolve this legal uncertainty expeditiously, this paper proposes a legislative amendment inspired by Article 107(2) of the Swiss Code of Obligations. Such a revision would require creditors to declare their chosen remedy “without delay” following the expiration of the notice period, ensuring a more stable and predictable legal environment.