프랑스 민법상 원상회복의무 - 체계적 의미와 반환범위에 관한 논의를 중심으로 -

초록

French law also recognizes that a contract may be unraveled for various reasons (annulment, termination etc.), and when it does unravel, it holds in principle that the parties must restore property received under the contract in question. In this paper, I focused on what basis and how the restitutions operate in France, and I endeavored to draw some implications for Korean lawyers. Unlike Korean civil law, in France the restitutions are not based on unjustified enrichment, rather they are considered as prolongation of the contractual effect. At any rate, the part of the French Civil Code relating to contractual obligations was completely redesigned and updated in 2016; among the updates were the Restitutions from Article 1352 to Article 1352-9. Prior to the reform, we could find no provisions on the matter in the Code. It had been a judicially-crafted law and the French judicial findings even seemed somewhat incoherent. The 2016 reform is innovative, as it provides unified and coherent restitution rules to a failed contract. I think this carries significance for Koreans. Firstly, the retroactive destruction of the contract results from either annulment or termination. There is no justification in discerning the scope of restitution, whether the contract is annulled or terminated as we have done so far. We should build up a unified and coherent restitution system in the future as France has done. Secondly, for this purpose and from this point forward, we should reconsider the meaning and status of Articles 201 (Acquisition of Fruits by Possessor in Good Faith) and 548 (Effects of Termination and Restitution) in the Korean Civil Code. Thirdly, we must consider providing more expressive and more concrete criteria pertaining to the scope of restitution as seen in the French Civil Code, with references to Common Law, German Civil Code, and Japanese Civil Code etc.

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