Defective performance (불완전이행)
Study the “Defective performance (불완전이행)” flashcard set — 83 cards. Defective performance, Sub-category of defective performance, Who proves non-attributable…
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|---|---|
| Defective performance | 불완전이행 - A situation where the debtor performs the obligation, but the performance does not conform to the content or purpose of the obligation. |
| Korean Civil Act definition of defective performance | No express statutory definition; recognized in legal doctrine and case law as a form of breach of obligation (채무불이행) under Article 390. |
| Article governing defective performance as breach | Article 390 (Non-performance of Obligations and Compensation for Damages). |
| Sub-category of defective performance | Breach / non-performance of obligation (채무불이행). |
| Element of performance concerned in defective performance | The QUALITY / conformity of the performance with the content and purpose of the obligation. |
| Typical example of defective performance (goods) | Delivering goods that do not meet the contractual specifications. |
| Legal basis for liability from defective performance | Article 390 of the Civil Act. |
| Requirement 1 for liability of defective performance | A valid obligation between the parties. |
| Requirement 2 for liability of defective performance | The debtor must have performed the obligation inconsistently with its contractual content. |
| Requirement 3 for liability of defective performance | The creditor must show damage as a result of the defective performance. |
| Requirement 4 for liability of defective performance | A causal relationship between the defective performance and the damage. |
| Requirement 5 for liability of defective performance | The breach must be attributable to the debtor's fault, either intent or negligence. |
| Who proves non-attributable cause | The debtor (obligor) must prove a cause not attributable to him. |
| Forms of fault required under Article 390 | Intent or negligence. |
| Function of the doctrine of defective performance | It protects the creditor's contractual interests by ensuring obligations are performed according to their intended content. |
| Article 390 official title | Non-performance of Obligations and Compensation for Damages (채무불이행과 손해배상). |
| Main rule of Article 390 | If an obligor fails to perform in accordance with the obligation, the obligee may claim damages. |
| Proviso of Article 390 | Does not apply where performance has become impossible and is not due to the obligor's intention or negligence. |
| Key phrase in Article 390 for proper performance | 'In accordance with the tenor and purport of the obligation.' |
| Article 393 official title | Scope of Compensation for Damage (손해배상의 범위). |
| Content of Article 393(1) | Compensation for damage from non-performance is limited to ordinary damages (통상손해). |
| Content of Article 393(2) | Obligor is responsible for special damages only if foreseeable. |
| Article governing scope of damages for defective performance | Article 393. |
| Test for recovering special damages | Foreseeability: obligor foresaw or could have foreseen special circumstances. |
| Article 544 official title | Delay of Performance and Rescission (해제권의 행사). |
| Main rule of Article 544 | If one party does not perform, the other may fix a reasonable period for performance and rescind the contract if not performed. |
| Proviso of Article 544 | No peremptory notice required if obligor declares intention not to perform. |
| Article for terminating contract after defective performance | Article 544 of the Civil Act. |
| Article 581(2) relevance | Seller's warranty in sales by kind; grounds a right to cure even without debtor's fault. |
| Provision allowing right to cure without fault | Article 581(2) of the Civil Act. |
| Right to demand cure | 추완청구권 - The creditor may require the debtor to correct defective performance. |
| Forms of cure | 1) repair of defective goods; 2) replacement of goods; 3) completion of performance; 4) any other necessary measures. |
| Principle expressed by right to cure | Creditor's main interest is to obtain PROPER PERFORMANCE rather than monetary compensation. |
| General statutory provision for right to cure in Korean law | No general statutory provision exists. |
| Nachbesserungsanspruch | German term for the right to cure / right to demand supplementary performance. |
| Doctrinal debate on right to cure | Whether it should be a claim for specific performance or a distinct right. |
| Article grounding creditor's claim for damages | Article 390 of the Civil Act. |
| How debtor avoids liability in damages | By proving non-performance was due to a cause not attributable to him. |
| Default scope of recoverable damages | Ordinary damages (통상손해) under Article 393(1). |
| When special damages are recoverable | Only if obligor foresaw or could have foreseen special circumstances (Art. 393(2)). |
| Textbook example of special damages | Defectively constructed building leading to structural collapse. |
| Legal bases for liability for extended damage | Contractual liability or tort liability, provided causation exists. |
| Extra element for extended damage compensation | Causation between the breach and the extended damage. |
| Condition for creditor to terminate contract for defective performance | Defective performance must substantially frustrate the purpose of the contract. |
| Procedural step before termination | Creditor must demand cure within a reasonable period. |
| Effects of termination | Releases parties from obligations and allows creditor to claim damages. |
| Main remedies for defective performance | 1) right to demand cure; 2) damages under Art. 390; 3) termination under Art. 544. |
| Impossibility of performance | 이행불능 - Performance has become objectively impossible due to circumstances. |
| Consequence of debtor's attributable impossibility | Debtor may be liable for damages under Article 390. |
| Delay in performance | 이행지체 - Debtor fails to perform within agreed time although performance remains possible. |
| Breach in delay | Failure to perform ON TIME. |
| Distinction between forms of breach | Delay concerns TIMING; impossibility concerns FEASIBILITY; defective performance concerns QUALITY. |
| Form of breach concerning timing | Delay in performance (이행지체). |
| Form of breach concerning feasibility | Impossibility of performance (이행불능). |
| Form of breach concerning quality | Defective performance (불완전이행). |
| Can defective performance arise in obligations 'to give'? | Yes. |
| Example of obligation 'to give' | Seller's duty to deliver goods. |
| Example of obligation 'to do' | Physician's duty to provide medical treatment. |
| First distinction in assessing defective performance of obligation 'to do' | Whether it is an obligation of RESULT or an obligation of MEANS. |
| Result obligation definition | An obligation requiring the debtor to achieve a specific contractual outcome. |
| When is a result obligation breached? | When the debtor fails to achieve the agreed result or achieves it defectively. |
| Typical example of result obligation | Construction contracts. |
| Means obligation definition | An obligation requiring the debtor to exercise reasonable care and diligence. |
| When is a means obligation satisfied? | When the debtor acts with the level of care expected from a reasonable person. |
| Typical examples of means obligations | Professional services such as medical treatment. |
| Importance of result/means distinction | Determines the STANDARD for assessing breach. |
| Standard of breach in RESULT obligations | Failure to achieve the promised result constitutes defective performance. |
| Standard of breach in MEANS obligations | Defective performance arises only when required care is not exercised. |
| Surgeon's operation outcome | Means obligation; failed outcome alone is not a breach. |
| Builder's house with cracked foundations | Result obligation; defective performance due to defective manner. |
| Debtor (obligor) | 채무자 |
| Creditor (obligee) | 채권자 |
| Ordinary damages | 통상손해 |
| Special damages | 특별손해 |
| Result obligation | 결과채무 |
| Means obligation | 수단채무 |
| Repair | 수리 |
| Replacement | 교환 |
| Right of termination | 해제권 |
| Right to demand cure / supplementary performance | 추완청구권 |
| Delay in performance | 이행지체 |
| Impossibility of performance | 이행불능 |
| Obligation | 채무 |