Restitution as the Consequence of Frustration under English Law and Korean Law in a Comparative Perspective

• 영문명: Restitution as the Consequence of Frustration under English Law and Korean Law in a Comparative Perspective
• 발행기관: 한국무역학회
• 저자명: 민주희 황지현
• 간행물 정보: 『Journal of Korea Trade (JKT)』Vol.26 No.7, 93~108쪽, 전체 16쪽
• 주제분류: 경제경영 > 무역학
• 파일형태: PDF
• 발행일자: 2022.11.30

영문 초록

Purpose - This paper examines the admissibility of restitution as the legal consequence where a contract is frustrated under the Law of Reform (Frustrated Contracts) Act 1943 in comparison with Korean Civil Code (KCC). In order to provide practical guidelines and advice regarding choice of and application of law for contracting parties in international trade, the paper comparatively evaluates requirements and the scope of restitution under the Act 1943 and KCC. Design/methodology - This paper executes a comparative study to analyze whether the parties may claim restitution of money paid or non-money benefit obtained before or after the time of discharge under English law and KCC. To achieve the purpose, it focuses on the identifying characteristics of each statute, thereby providing guidelines to overcome difficulties in legal application and inter￾pretation as to restitution as the consequence of frustration. Findings - Under English law, the benefit may be restituted according to Art 1943 or the common law rule, mistake of fact or law. Under the KCC, restitution is considered based on the principle of the obligation to recover the original obtained regardless of the time when the benefit is conferred. Whilst Act 1943 does not require careful analysis of the grounds of restitution, requirements to justify restitution according to the principle of unjust enrichment, mistake of fact or law, and the KCC should be met. Meanwhile, the KCC may provide more opportunities to award restitution because it does not require the burden of proof related to the defendant’s good faith, unlike the principle of unjust enrichment. Originality/value - Where the contract is frustrated by the effect of COVID-19, one legal issue is a consequence of frustration. Therefore, this paper analyzes requirements and the scope of restitution under English law as compared with the KCC in a timely manner. It provides contracting parties with practical guidelines and advice to reduce unpredictability when they choose the governing law in a contract.

목차

1. Introduction

2. Restitution under Act 1943

3. Mistake as a Ground of Restitution

4. Restitution under Korean Civil Code

5. Conclusion

References

키워드

Frustration Rescission of Contract Restitution Unjust Enrichment