민법개정안의 계약해제 규정의 현대화와 실무상 영향에 대한 관견

초록

Since its enactment in 1958, the Korean Civil Code has maintained a contract termination system centered on fault-based non-performance, but this traditional framework has increasingly faced limitations in reflecting the complexities of modern commercial transactions and global legal standards such as the CISG and UNIDROIT Principles. In response, the 2025 Civil Code Amendment proposes a fundamental paradigm shift by moving from a sanction-based liability model to a remedy-centered approach. This paper provides a comprehensive analysis of these proposed reforms, beginning with the unification of various breach categories—such as delay and impossibility—into a single, comprehensive concept of "non-performance of contract." A core feature of this amendment is the abolition of the debtor’s culpability (fault) as a prerequisite for termination, which transforms the right to terminate into a functional tool for releasing a creditor from a failed contractual relationship rather than a punishment for the debtor. To prevent the potential abuse of this expanded termination right, the amendment introduces the "triviality defense," a doctrine derived from the concept of fundamental breach, which stipulates that termination is barred if the breach is minor and the contract's primary purpose can still be achieved. Furthermore, the amendment codifies the right to request contract modification under the doctrine of "change of circumstances," positioning renegotiation as a preliminary step and treating termination as a last resort in accordance with the Relational Contract Theory. Despite these advancements, this study critically identifies several systemic challenges that may arise during practical implementation. Most notably, the removal of the fault requirement creates a potential conflict with the traditional "risk of loss" (risk-bearing) regime, leading to legal uncertainty regarding whether a creditor should pursue termination or rely on the automatic discharge of obligations in cases of force majeure. Additionally, the amendment’s dual structure, which maintains the procedural requirement of "notice to perform" while overlaying it with a substantive "triviality" assessment, may result in judicial inconsistency and increased litigation costs. The author argues that this transition represents an "incomplete transplantation" of international norms that lacks sufficient integration with the existing structure of the Korean Civil Code. Therefore, while the 2025 Amendment is a significant milestone toward the modernization and international harmonization of Korean contract law, it requires further scholarly reflection and clear judicial guidelines to ensure that the new remedy-centered system does not undermine legal stability or create unforeseen confusion in the judicial process.

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