중국의 채무불이행 유형론

Title
중국의 채무불이행 유형론
Other Titles
Patterns of Non-performance of Obligations in Chinese Contract Law
Author(s)
이상욱
Keywords
채무불이행; 채무불이행책임; 위약책임; 이행거절; 중국법; Non-performance of Obligations. Breach of Contract. Repudiation. Delay of Performance. Chinese Contract Law
Issue Date
201010
Publisher
영남대학교 법학연구소
Citation
영남법학, no.31, pp.161 - 184
Abstract
Korean Civil Law Article 390 is a general term on the non-performance of obligations. And there is the same clause in Japanese Civil Law. Today, the Patterns of Non-performance of Obligations are divided into three types such as Delay of Performance, Impossibility of Performance and Incomplete Performance either in Korea or Japan. Such tripartite theory was influenced by Germany Civil Law. The Article 107 of Chinese Contract Law constituted recently does not divide Non-performance of Obligations into Delay of Performance, Impossibility of Performance and so on, but provides that "Where one party to a contract fails to perform the contract obligations or its performance fails to satisfy the terms of the contract, the party shall bear such liabilities for breach of contract as to continue to perform its obligations, to take remedial measures, or to compensate for losses." in general. And Chinese Contract Law Article 108 is an express term on anticipatory breach of contract. At present, in China academic community, the classification of Non-performance of Obligations's type is according to the performance period. To begin with, Non-performance of Obligations is divided into the breach of contract before the performance period and the actual non-performance of obligations. Furthermore, the actual non-performance of obligations is divided into non-performance(Renunciation of Performance, essential breach of contract), delay of performance(delay of performance by obligor, delay by obligee), imperfect performance(flaw payment, payment of injury), and other incomplete performance(part performance, improper way of performance, improper place of performance, other acts of breach of contract). In conclusion, it will be an appropriate suggestion for Korean Civil Law that besides the Delay of Performance, Impossibility of Performance and Incomplete Performance expressly provide Renunciation of Performance as an independent pattern of Non-performance of Obligations from independent views.
URI
http://hdl.handle.net/YU.REPOSITORY/23463
ISSN
1225-6722
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