민법 제390조(채무불이행과 손해배상)·제393조(손해배상의 범위) 개정방향에 관한 소고(小考)

초록

The issue of whether to revise Article 393 of the Korean Civil Code (Scope of Compensation for Damages) and how to establish criteria for determining the scope of damages is systematically and structurally connected to the direction in which Article 390 of the Korean Civil Code (Non-performance and Compensation for Damages) is amended and applied. Therefore, it is difficult to discuss revising Article 393 in isolation without first setting a legislative direction for Article 390. From this perspective, while the 2024 Korean Contract Law Amendment revised the wording of the proviso in Article 390 from "without intent or negligence of the debtor" to "reasons not attributable to the debtor," there remains some regret that the rationale for this revision and its operational direction were not more clearly articulated. From a practical perspective, it is understandable that amending Article 390 of the Korean Civil Code immediately could be seen as premature. However, at the very least, a systematic and structural comparative review of Article 390 with civil laws in other countries is necessary at this stage. This will help determine where our current Article 390 stands in comparative legal terms and how to shape its future application. From a long-term perspective, I believe that, beyond the 2024 Korean Contract Law Amendment, it is necessary to eliminate the distinctiveness of liability for guarantees and integrate it into general liability for the non-performance of obligations. In doing so, adopting a structure—similar to those in France or common law jurisdictions—where contractual liability generally does not require the debtor’s fault- would be desirable. In contracts, unlike torts, the debtor should be held strictly accountable “according to what they have agreed,” aligning with the principle of private autonomy. This rationale is particularly relevant in South Korea, where most contracts are reciprocal and remunerative, as the essence of strict liability is already effectively implemented through guarantee liability.

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