계약해제의 효과와 그 법적 성질에 대한 검토- 비소급채권적효과설

Abstract

There are conflicting theories on the legal nature of contract cancellation, such as the theory of direct effect, the theory of indirect effect, the theory of liquidation relation, and eclecticism. When the civil code was being established in Germany, German legislators considered how to deal with the legal effects of introducing contract cancellation to civil law. It can be seen in the statement of reasons for the legislation that they initially favored the theory of indirect effect, changed to eclecticism during the deliberation process, and then in the final settlement process changed to the theory of direct effect. Afterwards, during the process of establishing the national assembly, it was reasoned that the effects of contract cancellation were difficult to codify and their interpretation would be left to theories and precedents. Legislators focused instead on obligations for restoration, which could be regarded as the practical effects of contract cancellation, and achieved a legislative compromise of codifying those obligations. As a result, in Japan, which inherited the German civil code, Japanese legislators also preferred the theory of direct effect but are now gradually switching to the theory of liquidation relation, a phenomenon that is occurring in Korea as well. In the personal view of this writer, however,each of the above approaches has its own set of problems. Accordingly,the writer purposes to argue a new view that an original contract which has been cancelled loses its efficacy for the future and the obligations for restoration should appropriately be viewed as a special act of claim for restitution of unjust enrichment in other words, a theory of the effect of non-retroactive bond. According to this view, it can be judged that the intent of the parties regarding contract cancellation, or the cessation of obligation to perform the parts of a contract not yet performed due to its lapse, is recognized, and the basis of the claim for restitution of unjust enrichment regarding the parts that have already been executed and the basis of liability for damages that have actually occurred are also properly recognized.