민법 제673조에 의한 저작물 제작계약의 해제와 손해배상

Abstract

An artist, who had been commissioned to make a sculpture, completed a model and applied for an orderer's approval, but to fail for no other reason but lack of artistic element. He completed another model, but this time the order's situation prevented him from getting off. Again, he was completed a third model on demand. However, the orderer unilaterally explained then the termination of the commission, and demanded restitution; the frustrated artist counter-claimed the damages for renunciation. The Court of Appeal confirmed that the termination be lawful, insofar as the conditions of article 673 of the Korean Civil Code, including damages to the contractor, were fulfilled. However, the Supreme Court criticized that the Court of Appeal had made mistakes in calculating damages: in that the payments for materials were included in the positive damages on one hand, for the artist could probably escape his damages by selling the materials to other; in that the estimated value of the artist's work on demand was consider on the other hand, for he could perhaps earn from another project during the same period as the frustrated project concerned. On the contrary, the Supreme Court rejected the application of contributory negligence. The article 673 of the Korean Civil Code provides: the orderer is entitled to terminate the contract arbitrarily by the completion of work ordered, subject to damages hereupon. As a contractor's right to rescission is generally denied in the case of default of an orderer's cooperation, the article has a practical meaning; otherwise, a contractor's remedy might be limited no other than to the burden of risk ascribed to an orderer. The author starts from the comparative-historical review, concluding the article has come, contrary to so far usual conception, from the French damages-oriented model, not from the German remuneration-centered model; criticising the Supreme Court's rejection of contributory negligence to this case; throwing doubt on the generally accepted interpretation of “termination” thereof as retroactive; and trying to make some proposals for the better application of the article.