대상청구권의 입법화와 해석론적 쟁점 -2024년 민법 개정안을 중심으로- = Legislative Codification and Interpretative Issues ofthe Claim for Substitute Performance -Focusing on the 2024 Civil Code Amendment Draft-

다국어 초록 (Multilingual Abstract)

The 2024 Korean Civil Code Amendment Draft has proposed to codify the right to claim substitute performance through the enactment of Articles 399-2 and 537(3). This codification seeks to formalize a right that had previously been recognized in case law and academic doctrine. The right to claim substitute performance is defined as the creditor’s right to demand the transfer of rights or restitution of benefits acquired by the debtor in lieu of the original object of obligation due to the impossibility of performance. This institution is designed to promote equitable outcomes when performance becomes impossible, thereby contributing to the realization of contractual justice.
Despite the proposed codification, interpretative gaps remain concerning the requirements and scope of application. This study addresses the major interpretative issues through comparative legal analysis with legislative examples from France, Germany, and Japan.
First, regarding obligations involving acts (either active or passive), it is reasonable to extend the substitute performance claim to such obligations. This view is supported by several considerations: the principle of equitable allocation of benefits, the absence of justification for differential treatment based on the nature of the obligation, and the open-ended wording of the amendment draft that accommodates such cases.
Second, concerning original impossibility, it is consistent with systematic coherence to interpret that claims for substitute performance should extend to cases of original impossibility. This interpretation aligns with the 2024 draft’s abolition of the traditional doctrine rendering contracts void for original impossibility.
Third, in relation to benefits derived from legal acts, there is no sufficient reason to differentiate rights attribution based on the origin of the benefit. Therefore, the exclusion of such benefits undermines the effectiveness and fairness of the system.
Finally, with respect to excess benefits, it would be inconsistent with equitable principles to allow creditors to acquire windfall gains without their own contribution. Thus, it is consistent with good faith to limit the scope of substitute performance claims to the market value of the object at the time of impossibility.
The 2024 draft reflects a deliberate legislative openness, allowing space for doctrinal and judicial development in the application of the right to claim substitute performance. For the stable establishment of this legal institution, it is essential to develop a coherent interpretative framework grounded in comparative analysis and to accumulate judicial precedents over time.