프랑스 민법상 계약의 실효와 원상회복의 범위 - 우리 민법상 해석론과 판례와의 비교를 중심으로 -

초록

Both French and Korean laws recognize that when a contract unravels for various reasons (annulment, termination etc), it holds in principle that the parties must restore the property received under the contract in question. However, each nation’s system operates restitution on a different basis: in France, it is seen as the prolongation of a contract, while in South Korea, it operates based on unjustified enrichment. What I have learned from the comparative study is as follows: First, putting aside the different theoretical bases of restitution, I found that the real scope of restitution in both countries is similar. Secondly, regarding restitution between parties for a failed contract, French law applies Articles 1352-3 and 1352-7 (Restitution of Fruits, Value of Enjoyment etc) rather than Articles 549 and 550 (Acquisition of Fruits by Possessor in Good Faith). When dealing with the matter, the majority of Korean scholars and jurisprudence have given priority to Article 201 in the Korean Civil Code (a counterpart of the Articles 549 and 550 in the French Civil Code). As opposed to this, one influential Korean theory holds that Article 201 should not be applied to restitution for a failed contract. I think this argument is more convincing, if we consider the standpoint of French law.

키워드