Die Entwicklung des Leistungsstörungsrechts und die Rezeption der westeuropäischen Rechtstheorien in Korea – mit Bezügen zum japanischen Recht
Abstract
The article analyzes the historical development of the rules on breach of contract under Korean law. Korean private law developed in close connection with Japanese law which in turn was strongly influenced by German doctrine. This also applies to the law of breach of contract. The article first describes the rules on rescission of contract and damages in case of breach of contract as contained in the Korean Civil Code as well as relevant tort law provisions. Art. 390 Korean Civil Code contains a general clause on breach of contract and is based on a widely framed notion of “non-performance” which includes impossibility to perform, default and malperformance. Thus, in Korean – as in Japanese law – there is no gap which would suggest adoption of the German doctrine of positive Vertragsverletzung. Nevertheless, Korean doctrine embraced – by way of Japanese law – a system which defined breach of contract either as impossibility to perform, default or positive Vertragsverletzung. The latter is particularly important in Korean law as regards cases where the debtor refuses to perform. The Korean Civil Code only provides for rescission of contract in case the debtor refuses to perform after default but not for any other remedies while there are no provisions at all on a refusal to perform prior to default. Further, the Korean Civil Code lacks provisions on rescission of contract in cases of non-performance other than impossibility or default. Again, Korean doctrine resorts to positive Vertragsverletzung and has further developed it. Positive Vertragsverletzung as understood in Korean law, thus, differs from the original concept in Germany. The reasons become clear when looking at the process of adoption in Japan and later on in Korea. The article finally looks at the plans to reform the law of breach of contract in Korea.
