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RISS 인기검색어
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- 주제어 : 민법 668조 (검색결과 3 건)
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建築都給契約上의 解除權에 관한 沿革的 考察 - 일본민법 제635조 단서에 관한 논의를 중심으로
宋榮珉(Young-Min Song) 한국비교사법학회 2006 비교사법 Vol.13 No.2
This thesis looks into the debate of legislative procedure on the provisory article of the Japanese Civil Law Clause 635 and reviews the debates on the provisory article of the Civil Law Clause 668. The theory of Korean Civil Law, which is consisted of equal law system and text, has been accepting the exclusive opinion of the Japanese Civil Law without different views. However it could be generally accepted that the provisory article of the Japanese Civil Law Clause 635 had been prescribed without enough debates on the process of legislation. There are lots of problems including drafter’s different viewpoints, social economics, and enforcing descriptions on the legislation of the Clause.<BR> The Standpoint on the side of the maintenance on the provisory article of the Civil Law Clause 688 over the opinion of the revision of the Civil Law prescribes to accept the restriction of cancellation in case of the building contract which its returning to the original owing to the cancellation may cause extremely unfair results socially and personally, nevertheless the attitude which has subjective mark as “the probability on achievement of contract” on the condition of cancellation, the responsibility for mortgage in the building contract, might not be matter on the trade contract. I quite agree with this opinion.<BR> In the process of legislation, the provisory article of the Japanese Civil Law Clause 635 doesn’t have to be applied unexceptional in case the building, and other real estates is considered as its purpose.<BR> Thus, it would be appropriate to apply the provisory article as restrictive regarding the reasonable solution to the situation in case there is a considerable problem that the reconstruction of the completed building owing to the security is even not considered as proper way.<BR> In conclusion, the provisory article of the Civil Law Clause 668 has to be maintained. However it has to be restricted in case it is worth objectively as the building like that in the objective viewpoint nevertheless the contractor might not achieve the aim of contract in the interpretation, besides it has to be interpreted not to apply in case it is necessary to rebuild the building after removal owing to considerable defects and problem of usage. Moreover the provisory article doesn’t have to be interpreted as the enforcing descriptions.
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석지윤 ( Jiyoon Seog ) 연세대학교 법학연구원 2016 法學硏究 Vol.26 No.2
There are many different problems with addressing the current legal relations of contract for work from the time of civil code enactment due to rapid changes to the social circumstances. The provisory clauses regarding the Right of Rescission of Person Who Ordered Work in Article 668 of Civil Code stipulate that If, by reason of some defect in the finished subject-matter of the work, the purpose of the contract cannot be achieved, the person who ordered the work may rescind the contract: Provided, That this shall not apply to a building or any other structure on land. Article 668 prescribes that the contract cannot be rescission, however major the defects may be to the completed object, as long as it is a building or other structures on the lot. In cases of defects to the completed object that is a building or other structure on the lot, the contractor can only demand compensation for the damage by having the defects substituted with repair works or requesting repair, as well. Once the rescission is recognized, the contractee should demolish the building and other structures on the lot for restoration. Those burdens are not only harsh on the contractee, but also cause him or her economic losses, which have resulted in a restriction on the right of rescission. The social and economic backgrounds have changed considerably over the decades, and the recent rapid growth and technological advancement of housing projects have made it a less difficult job to construct and demolish a building. If the completed building cannot perform its functions as a building due to enormous defects or serve its original purposes, the contractor will suffer tremendous economic losses as long as it is left alone as a building or other structures on the lot. When a building with severe defects is left alone, it will pose a risk and cause a bigger problem. It has been many years since several problems were raised with the provisory clauses of Article 668 of Civil Code, and the recent revision direction of Civil Code is moving toward its elimination. It will be rational to determine whether a building should be demolished or not by taking into total consideration the severity of defect, possibility of repair, economy, and dangerousness, which make it valid to eliminate the provisory clauses of Article 668. It will be more proper both socially and economically to recognize the right of rescission, to demolish a fraudulent building, to eliminate the risk of damage to human life and property, and to construct a new building than applying the restrictions based on the rescission provisions. It is critical to take a careful approach to construction contracts and contract for work as they have both the same and different characteristics.
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