해외건설 및 자원개발을 둘러싼 계약상의 이슈 국제계약상 사정변경의 원칙 = Application of the Principle of Changes in Circumstances to International Contracts

다국어 초록 (Multilingual Abstract)

In this paper, we examined applicability of the Principle of Changes in Circumstances to International Contracts. Contracts are entered into, based on the principle of private autonomy, upon the agreement between the parties’ free intentions, and a mutual binding effect forms following the contract, which under any circumstances cannot be changed, and the principle of freedom of contract is to fulfill the contract as agreed between the parties. However, if the balance of the contract is fundamentally altered due to unexpected changes in circumstances after the contract conclusion, situations arise where one or both parties in the contract can’t perform the original contract, and compelling the fulfillment of original contract is against the good faith and fairness, the ‘Principle of Changes in Circumstances(clausula rebus sic stantibus)’ states that such contract should be allowed for modifications or terminations, and it has been discussed for a long time. Although such principle may be stipulated in each country’s law, its specific requirements to be in effect or its effects are different according to each country’s positive law, or in other cases, it may connote the signification of the principle in individual clause if not stipulated, or be implied in the court’s judicial interpretation. In such circumstances, the applicability of the principle in international contract may change based on the existence (or feasibility of interpretation) of the clauses that explicitly states such in the contract or the governing law of the contract. Furthermore, if the contract does not explicitly state about the change in circumstances, or there is no regulation on change in circumstances in governing law, or an article that either states that the principle is inapplicable or explicitly excludes the principle of change in circumstances in the contract or governing law, the principle of change in circumstances faces the practical problem of whether it can precede such exclusion and be applied. It was confirmed in the precedents that, if the international rule can be applied at least as a suppletion if not an actual governing law, the principle of change in circumstances defined by the relevant international rule can be applied, but even each governing law or international rule has different specific requirements or effects, the contents of the article to comply with must be thoroughly understood. However, even if the Principle of Changes in Circumstances is explicitly excluded in the contract, such agreement of exclusion is void in countries where the Principle of Changes in Circumstances is a mandatory law, and since the application can be excluded if the foreign law, which is the governing law, is against the public policy of the forum state, if the governing law that denies the application of the principle goes against the public policy of the forum state, the application of such governing law can be excluded. The 2004 Bill of the Korean Civil Code provided the principle of changes in circumstances, neighboring countries such as Japan and China are continuously trying to legalize it, and it has already been enacted in Taiwan. Like this, the principle of changes in circumstances is no longer a principle of law or rule that stands on the opposite side of the principle of freedom of contract and pacta sunt servanda principle, but a rule of law that reflects the current legal norm. From such viewpoint, to meet the trend of major Asian countries’ effort to formulate the Principles of Asian Contract Law, the Korean Civil Code should explicitly provide the principle of changes in circumstances for harmonious application or interpretation with the international norms on contract.