부수적 의무의 불이행

Abstract

A Study on the non-performance of Subsidiary Obligation

Gyeong Hui Jo

Department of Law, The Graduate School, Pukyong National University

Abstract

In principle of 'freedom of contract', a party or parties in the contract acquire(s) certain rights according to the conclusion of the contract, and along with this, a party is under different obligations to do depending on the contents agreed with the other party or the provisions of the law. Since a party or parties' intention or purport is an important part in the agreement, it is necessary to figure out the contents of each party's debt and how much it may have an influence on the achievement of the contract to some extent to determine whether its subsequent payments are made properly. Meanwhile, if payments are not made properly according to the contents of debts, a debtor is obliged to be responsible for a penalty under certain conditions, and thus legal remedy means against non-performance occurs to the other party. Such remedy means of non-performance typically includes two methods: the one is to get supplemented about the damages caused by the non-performance; the other is to cancel the contract and then return to the point of time when the contract did not occur in order to get out of the contract. Damages compensation for the damages caused by the nonperfomance is acknowledged, but rescission of contract is partially acknowledged under certain cases. To this, both doctrines and precedents divide main obligation and subsidiary obligation as a means to determine the occurrence of rescission of contract. Therefore, main obligation and subsidiary obligation will be discussed separately, and particularly for subsidiary debt, as it is mainly discussed in case of violation of subsidiary obligation, subsidiary obligation will be intensely focused on. However, many precedents have acknowledged the 'rescission of contract', in relation to the nonfulfilment of subsidiary obligation seemingly, judging like this: "It is inevitable to achieve its goal, and if it isn't fulfilled, the purpose of contract is not fulfilled, and thus it is a main debt that is enough to be considered that the party or parties did not enter into a contract." Therefore, when assessing the effect of non-performance, it must be determined by the party's rational decision making which was expressed when making a contract regardless of the counterpart's independent value or appeared evident objectively from the situation at the time, and various matters such as content, purpose, and consequences as a result of breach of contract should be considered. Therefore it is concluded that subsidiary obligation can be acknowledged as main obligation in some specific cases. In relation to this, discussions on the occurrence of the right to cancel as an effect of nonfulfilment of subsidiary obligation should be conducted. Meanwhile, protection obligation is discussed under the influence of Germany. There is nothing to discuss the recognition of the claim of the damage by judging that nonfulfilment of subsidiary obligation is non-performance in the contract, but what is noteworthy in the discussion of protection obligation apart from the subsidiary obligation that substantially supports the realization of benefits obligation derived from benefits obligation is on the legal status of protection obligation. In other words, the key point is whether the nonfulfilment of protection obligation belongs to the area of non-performance that produces damages compensation persuant to Civil Code Section 390. In relation to this, the background of protection obligation and its legal nature will be discussed and the legal status of protection obligation will also be conversed. Therefore, this study divides subsidiary obligation and main obligation and makes both the concepts more clarified to discuss whether rescission of contract in relation to the nonfulfilment of subsidiary obligation are acknowledged, and additionally legal nature of protection obligation will be examined and finally, whether it will be actually included in the area of non-performance will be reviewed.