재교섭을 통한 계약내용의 수정 - 특히 再交涉義務論의 위치부여를 위한 시론 - (Contract Adaptation through Renegotiation - For taking stock of the doctrine on the duty to renegotiate -)

서지정보

· 발행기관 : 한국민사법학회
· 수록지 정보 : 민사법학 / 50권 / 435 ~ 477페이지
· 저자명 : 박영복

초록

When parties to a contract face an unanticipated event that affects the contract in a serious way, they might wish the court to adapt the contract and to impose a new term that responds to that event. But when, if ever, should the courts be allowed to adapt contracts? If the courts were allowed to adapt a contract discretionary, it would undermine the parties' autonomy. Therefore, adaptation by the courts requires solid justification. This article seeks for the justification of the Contract Adaptation through Renegotiation.
In German law, adaptation of contracts under changed circumstances has been justified by the doctrine of the “foundation of the transaction"(Die Lehre von der Geschäftsgrundlage). This doctrine was established by the courts and has recently been codified in article 313 of new German Civil Code(BGB). According to the doctrine, the contract should be adapted or avoided, when to maintain the original contract would bring about results that are incompatible with law and justice.
Under this doctrine, the courts step in to restrict the contracts, and thereby to avoid injustice.
Recently, however, it has been strongly argued that parties should be imposed a “duty to re-negotiate"(Neuverhandlungspflicht). According to this duty, parties confronted with supervening event must re-negotiate over the new terms before bringing the case to the court. This duty has been justified through the idea that it should be the parties, not the courts, who decide the new terms. But it should also be noted that the advocates of “duty to re-negotiate" do not consider court's intervention unnecessary. They argue that adaptation by the courts is essential to deter parties' opportunism, and to support the party who would be in disadvantageous position in the re-negotiation.
In Korean law, termination and adaptation of contract have been recognized, in theory, under the “doctrine of changed circumstances". Its definition of the principle of changed circumstances became traditional in Korea: “The rule states that when the circumstances releasing a legal act,creating a legal relation, change in an unforeseeable way alter the accomplishment of the act and before expiry of its consequences, due to the influence of facts not attributable to the parties, with the result that the creation of legal consequences in the original sense, or their continuation, is to be considered as unreasonable in the light of the rule of equity and good faith, then such legal consequences are to be adapted in equity and good faith". This doctrine is primarily due to its use of the “good faith" concept as a foundation which made it possible to incorporate this principle into civil law and in its clearly defining the conditions for and consequences of application of the rule from the beginning. As generally accepted, the four prerequisites justifying application of the rule are as follows: (a) The circumstances at the origin of the legal act changed substantially. (b) Such change was not and could not reasonably be foreseen. (c) Such change was not due to the parties themselves. (d)As a consequence of the changed circumstances, execution or continuation of the original obligations substantially violates good faith and equity. The four conditions being fulfilled, the possible consequences of application of the principle of changed circumstances are an adaptation of contracts or a dissolution of the contract. The majority opinion seems to be that first the adaptation of the provisions has to be claimed and if refused by the opponent or if an adaptation is impossible, dissolution of the contract will be granted.
In case of the requirements for the principle of change of consequences,it is needed that contracts is maintained for the contract-party. It is necessary to obligate the parties primarily revise contract or settle contract through negotiations instead of allowing these effects take place directly.
So under being based on this thought, theoretical examining the right and obligation for the adaptation and connecting with the doctrine on the duty to renegotiate this article suggests the justification for the adaptation of contacts, which should be adopted for Korean doctrine of changed circumstances. This article suggests also that courts' adaptation is necessary to improve the quality of re-negotiation.

영어초록

When parties to a contract face an unanticipated event that affects the contract in a serious way, they might wish the court to adapt the contract and to impose a new term that responds to that event. But when, if ever, should the courts be allowed to adapt contracts? If the courts were allowed to adapt a contract discretionary, it would undermine the parties' autonomy. Therefore, adaptation by the courts requires solid justification. This article seeks for the justification of the Contract Adaptation through Renegotiation.
In German law, adaptation of contracts under changed circumstances has been justified by the doctrine of the “foundation of the transaction"(Die Lehre von der Geschäftsgrundlage). This doctrine was established by the courts and has recently been codified in article 313 of new German Civil Code(BGB). According to the doctrine, the contract should be adapted or avoided, when to maintain the original contract would bring about results that are incompatible with law and justice.
Under this doctrine, the courts step in to restrict the contracts, and thereby to avoid injustice.
Recently, however, it has been strongly argued that parties should be imposed a “duty to re-negotiate"(Neuverhandlungspflicht). According to this duty, parties confronted with supervening event must re-negotiate over the new terms before bringing the case to the court. This duty has been justified through the idea that it should be the parties, not the courts, who decide the new terms. But it should also be noted that the advocates of “duty to re-negotiate" do not consider court's intervention unnecessary. They argue that adaptation by the courts is essential to deter parties' opportunism, and to support the party who would be in disadvantageous position in the re-negotiation.
In Korean law, termination and adaptation of contract have been recognized, in theory, under the “doctrine of changed circumstances". Its definition of the principle of changed circumstances became traditional in Korea: “The rule states that when the circumstances releasing a legal act,creating a legal relation, change in an unforeseeable way alter the accomplishment of the act and before expiry of its consequences, due to the influence of facts not attributable to the parties, with the result that the creation of legal consequences in the original sense, or their continuation, is to be considered as unreasonable in the light of the rule of equity and good faith, then such legal consequences are to be adapted in equity and good faith". This doctrine is primarily due to its use of the “good faith" concept as a foundation which made it possible to incorporate this principle into civil law and in its clearly defining the conditions for and consequences of application of the rule from the beginning. As generally accepted, the four prerequisites justifying application of the rule are as follows: (a) The circumstances at the origin of the legal act changed substantially. (b) Such change was not and could not reasonably be foreseen. (c) Such change was not due to the parties themselves. (d)As a consequence of the changed circumstances, execution or continuation of the original obligations substantially violates good faith and equity. The four conditions being fulfilled, the possible consequences of application of the principle of changed circumstances are an adaptation of contracts or a dissolution of the contract. The majority opinion seems to be that first the adaptation of the provisions has to be claimed and if refused by the opponent or if an adaptation is impossible, dissolution of the contract will be granted.
In case of the requirements for the principle of change of consequences,it is needed that contracts is maintained for the contract-party. It is necessary to obligate the parties primarily revise contract or settle contract through negotiations instead of allowing these effects take place directly.
So under being based on this thought, theoretical examining the right and obligation for the adaptation and connecting with the doctrine on the duty to renegotiate this article suggests the justification for the adaptation of contacts, which should be adopted for Korean doctrine of changed circumstances. This article suggests also that courts' adaptation is necessary to improve the quality of re-negotiation.

참고자료

· 없음