계약해제로 인한 원상회복의무와 그 책임의 범위

• 발행기관: 한국재산법학회
• 저자명: 문성재
• 간행물 정보: 『재산법연구』재산법연구 제20권 제1호, 35~52쪽, 전체 18쪽
• 주제분류: 법학 > 법학
• 파일형태: PDF
• 발행일자: 2003.08.01

영문 초록

When one party of a contract rescinds the deal, the parties concerned have the obligation to recover any changes that have taken place during the time between the initial contract and the rescission of it. To rescind a contract is to return to the previous state where the contract has not yet taken place by the declaration of one party concerned with the it. Here arises the problem of what things to be recovered and how much to be compensated for irreversible changes. This paper is planned to deal with such problems. The Civil Law provides for two kinds of rescission, one being the statutory rescission recognized in the case of delay of performance or the impossibility of it, and the other being contractual rescission. Statutory rescission usually occurs in the case of nonfulfillment of obligation by one party of contract. Now when the contract was rescinded because of defective product or some responsible reason, we should not approach the problem with price mutuality, because such approach will result in forcing the other party to accept all the disadvantages. Therefore, the problem of whom to ascribe the responsibility to, is not fully answered by Unjust Enrichment Law or the Contract Law. We would need a reasonable solution which takes into account both the party who incurred the loss and the reason of contract rescission. thus ascribing the loss to the party who incurred the loss. When goods are returned as a procedure of recovery, it is generally accepted that the goods should include the fruits gained from it during the time the contract was in effect, and that certain rate of interest be counted for when the contract concerns monetary assets. However, if the original goods are missing or impaired. the problem of compensation rises. Goods generally depreciate in value with time and use. The problem of who to be held responsible for the depreciation, or whether it is appropriate to compensate for the goods with the fair market price at the time of rescission also needs in-depth review. The paper deals with such problems concerning the rescission of contracts as mentioned above.

목차

제1 서언

제2 계약해제에서의 위험분배

제3 결어

ABSTRACT