'유럽계약법원칙' 에서의 채무불이행법리

Abstract

The Principles of European Contract Law(PECL) are the product of work carried out by the Commission on European Contract Law, a body of lawyers from all the member States of the European Union(ED), under the chairmanship of Prof. Ole Land(Lando Commission). They are a response to a need for an ED-wide infrastructure of contract law to facilitate cross-border trade within ED and to strengthen the single European market, by constructing a bridge between the Civil Law and the Common Law.

But what interests the author most is that they present a modem formulation of a Lex Mercatoria, internationally accepted principles of contract law. So they can be served as good sources of reference in working out a draft for the revision of the Korean Civil Code, which is now in progress under the supervision of the Ministry of Justice. With this article the author aims to give an overall view of the breach of contract rules provided in PECL, mainly those of Chapters 8 & 9, and hopes to help get an orientational perspective for the improvement of our legal rules.

PECL do not distinguish between the various possible forms that non-performance may take. The same basic rules apply to defective performance, late performance and a total failure to do anything. All these situations are simply termed non-performance. Remedies may be available under PECL even though the time for a debtor to perform has not yet arrived, if it appears clear, or a creditor reasonably believes, that the other party will default when the time comes. PECL do provide different remedies according to why the non-performance has occurred, in that some non-performances are treated as excusable. In the paradigm case in which there is no excuse for the non-performance, the creditor may exercise one or more of the following remedies: Compel the other party to perform; Withhold its own performance until the other party does perform; Escape from the contract by terminating it because of the non-performance; Reduce the price payable to the non-performing party for any part of the contract which it has performed, by the amount by which the non-performance has made it less valuable; and Claim damages for the loss caused by the non-performance.