契約解除에 관한 比較法的, 立法論的 課題 - 민법개정안의 문제점과 올바른 개정방향을 중심으로

• 영문명: Task and Problems of Withdrawal from Agreement in Aspects of Comparative Law and Legal Policy - Concentrating on the Problem with the Amendment of the Korean Civil Code and Correct Direction for Its Amendment -
• 발행기관: 한국사법학회(구 한국비교사법학회)
• 저자명: 廷基榮(Yeun Kee-Young)
• 간행물 정보: 『비교사법』비교사법 제11권 4호(상), 39~78쪽, 전체 40쪽
• 주제분류: 법학 > 법학
• 파일형태: PDF
• 발행일자: 2004.12.01

영문 초록

  This paper attempted to first introduce the flow of the theories and precedents on the withdrawal set forth in Korean Civil Code, then present the problems in the provisions related to the withdrawal and the termination of the agreement and the correct amendment plan for those provisions.
  First of all, it was emphasized that the legal relationship in the withdrawal from an agreement should be understood as an organized body in the perspective of extending the original agreement relationship, in the interpretation of the law currently in force. In case of an obstacle in the performance, the legal relationship should be viewed as a whole trust relationship until all legal relationships are settled, while being cleared from the binding force of the agreement relationship. Therefore, this paper clarified its position in the standpoint of the theory of relationship settlement, in explaining the pre-conditions and the effects of the withdrawal.
  On the other hand, in discussing the interpretation of the law currently in force and the task in the theory of legislative law, it was recognized that a study and examination in the perspective of comparative law was necessary with much interest in the international norm and the unification of private law. Such will be a natural conclusion considering the characteristic of the universality and the internationalism of the agreement law. Such data as CISG of the United Nations, which is to be held effective from March 1, 2005, with the ratification of the Korean government, the proposal for the international unification of the private law which is being developed mainly by UNIDROIT, and EG-Richtlinie, the legislative guide of EU, etc.. specially are considered important for the task of legal interpretation and legal amendment, in order to runside by side with the internationalization trend. The content of BGB (the German Civil Code). which has commenced since 1978 and has been put in force since 2002, is another incontestably important material for study in the perspective of comparative law.
  In particular, this paper proposes much reference to be made to the legislative materials on the amendment of the civil code in German, while examining the previously announced amendment of the Korean Civil Code. This amendment of the Korean Civil Code may be highly valued for its attempt to unify and modify the existing provisions in general, yet it lacks much study and examination in the perspective of comparative law, in depth. I expect. particularly, a study in the perspective of comparative law on the German Civil Code, which has revived with a new civil code for the twenty-first century, CISG of the United Nations, the proposal for the international unification of the private law which is being developed mainly by UNIDROIT, the law on the withdrawal from agreement as set forth under EG-Richtlinie, etc., and also expect it to be reflected in the amendment of the Korean law on the withdrawal from agreement. However, a future study in the perspective of comparative law through interchange and cooperation within Asian legal boundary, such as Japan and China, is also very important.

목차

Ⅰ. 머리말
Ⅱ. 현행 한국민법상 해제, 해지제도의 구조
Ⅲ. 법정해제권의 발생원인과 귀책사유의 문제
Ⅳ. 법정해제권의 행사와 효과
Ⅴ. 민법개정안의 내용과 입법론적 과제
Ⅵ. 맺음말
참고문헌
【ABSTRACT】

키워드

계약해제 계약해지 민법개정 채무불이행 사정변경의 원칙 손해배상 하자담보책임 독일의 채권법개혁 UN의 ＜국제물품매매협약(CISG)＞ ＜ 사법통일을 위한 로마기구(UNIDROIT)＞ 동시이행항변권 비교법 입법론 Withdrawal from Agreement Amendment of the Korean Civil Code Reform of the German Civil Code(BGB) UNIDROIT comparative law Legal Policy CISG of the United Nations