PICC 및 DCFR상금전채무 이행청구권에 관한 비교연구

Abstract

This study primarily concerns the creditor’s right to require performance of monetary obligation under the UNIDROIT Principles of International Commercial Contracts; here-in-after PICC) and the Draft Common Frame of Reference; here-in-after DCFR). The right is known as a process whereby the aggrieved creditor obtains as nearly as possible the actual subject-matter of his bargain, as opposed to compensation in money for failing to obtain it. The study describes and analyzes the rules of the PICC as to the seller's right to require performance of monetary obligations in comparison to those of the DCFR. In this comparative study, it raises the questions on what is its legal nature and what the restrictions of his right to require performance are. It particularly deals with main controversial issues as to, first, how one must handle the cases where both the creditor and the debtor coincidentally causes the debtor’s failure to pay which cannot be divisible, second, whether the debtor can be exempted from his duty to pay where his failure to pay is caused by another event as to which the creditor bears the risks which is not the creditor’s act or ommission, and third, if the creditor is divested of his right to require payment where the monetary obligation has not yet been earned by the creditor's own performance and it is clear that the debtor will refuse to receive the creditor's future performance. On the basis of the comparative analysis, the study puts forward the author’s opinion some issues could be handled within the existing regime in a way to apply some other basic provisions, whereas the other issues could not be so that it is necessary to be amended in a possible near future.