사정변경 제도의 성문입법화 시도에 관한 몇 가지 비판적 단상 - 민법중개정법률안 제544조의4를 계기로 한영미법의 Frustration 법리와의 비교ㆍ분석을 통하여

• 영문명: A critical perspective to the doctrine of circumstance-exchange in article 544-4 of the proposed revision of the korean civil code - in compare with the frustration doctrine in the common law countries -
• 발행기관: 한국재산법학회
• 저자명: 김상중(Kim Sang-Joong)
• 간행물 정보: 『재산법연구』재산법연구 제23권 제1호, 129~184쪽, 전체 56쪽
• 주제분류: 법학 > 법학
• 파일형태: PDF
• 발행일자: 2006.06.01

영문 초록

  This article covers in analysis of the doctrine of frustration(hereinafter as “the doctrine”) from the critical perspective. I refer to the frustration doctrine available in the common law countries like U.S. or U.K. for compare and contrast purpose, and here are my findings as follows:
  first, the applicability of the doctrine is limited the circumstance where the doctrine of pacta sunt servanda should not be applied, I.e., where it is more reasonable to say that the content of the contract is no more applicable to the parties because there are some changes in circumstance happened after the contract was formed and the interests of the parties could not be controlled properly under the contract.
  second, the doctrine was introduced and in force to meet the highly ethical request for the just solution of the cases raised in legal order, and thus it is inevitable for the doctrine to be implemented in conflict with the doctrine of the securing of the contractual order. it came into existence in the form of uncontrollable limitation with respect to the clear understanding of the elements of the doctrine. Nontheless, we can get a couple of indicia such as the nature of each contract, the market practice, parties’ status in negotiation, foreseeability of the change in circumstances, and the degrees of disadvantage and its avoidability from the fact that the doctrine play some roles to settle the disadvantages arising from the unforeseeable circumstances.
  third, the doctrine, as is explicitly stated in article 544-4 of the proposed revision, intends, more than anything else, to make the contract void by exercising the right of cancellation. Nontheless, it seems more reasonable and in conformity with the practical function of the doctrine under the existing civil code for the court to have the discretion to change the content of the contract, contrary to the proposed revision, where the court comes to the conclusion that the parties’ interests cannot be resolved in an appropriate way relying on the exercise of the cancellation right.
  fourth, relating to the scope of applicability the above fact that granting the right of changing the contract as a legal effect of the doctrine implies, contrary to the proposed revision, that the doctrine needs to be extended where the parties has wrong understanding about the content of contract at the time the contract was formed as well as where the circumstances have been changed after the contract was formed.
  fifth, the function of the doctrine, just adjustment of the parties’ interests following the change in circumstance after the contract, should be implemented even in the case of cancellation of the contract based upon the change in circumstance in a way to ensure the flexible formation of the contract relating to restitution.

목차

Ⅰ. 들어가며
Ⅱ. Frustration 법리의 발전과 적용
Ⅲ. 개정시안 제544조의4에 관한 몇 가지 단상
Ⅳ. 맺으며
참고문헌
〈Abstract〉

키워드

사정변경제도 착오 계약좌절 불능 이행의 비현실성 목적좌절 the doctrine of exchange in circumstance mistake Frustration impossibility impracticability frustration of purpose