추완청구권과 민법 개정

Abstract

This paper dealt with the issue how we should incorporate the Right to Cure, a remedial relief for the obligee in the case of an non-conforming (defective) performance, into the Korean Civil Code. The contents of this paper could be summarised as follows. First of all, as the Right to Cure is an instrument that could enforce 'pacta sunt servanda', a key principle in contract law, while striking a balance between an obligor's interests and an obligee's interests, its codification is necessary. This is especially clear after a comparative study: Gem血1y and Japan codified the Right to Cure in the amendments of their Civil Codes; international model laws (CISG, PICC, PECL, DEFR), too, have codified the Right to Cure. Secondly, the Right to Cure should be included in the General Provisions of the Law of Obligations since it is applicable to all types of contracts specified in the Particular Provisions of the Law of Obligations and since the Right to Cure is a typical and general remedy for a breach of contract. However, in doing so, 'disproportionality' ought to be stipulated as a cause for limiting a Right to Cure, there should be a short limitation period, and it must be clear that the obligor bears the cost of Cure. Thirdly, there is a need to specifically codify the Right to Cure into clauses related to
 Warranty for Defects, a classic example whereby non-conforming (defective) performance is an issue. If such codification were to take place, whether we should recognize a choice - to the seller - regarding the means of Cure will be an issue. However, since the non-conforming (defective) performance is attributable to the seller himself or herself, there is no need to recognize the right of a choice regarding the means of cure for the seller. Furthermore, whether a buyer could claim a Compensation of Damages in lieu of a Cure without exercising the Right to Cure is also an issue. Here, it ought to be codified that the buyer should first offer the seller an additional period for Cure, only after which the buyer could claim a Compensation of Damages in lieu of the Cure considering the rationale of a Right to Cure and that of Section 395 of the Korean Civil Code. This Priority of Cure must be enforced even in the case of a buyer resorting to the Right to Price Reduction or to termination of the contract. As the obligor's interests with regard to Cure will be protected by the aforementioned doctrine of Priority of Cure, there is no need to separately codify an obligor's Option to Cure into the Civil Code.