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Termination for Anticipatory Non-performance

PAK HYUNJUNG 1

1동아대학교

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ABSTRACT

Korean jurisdiction recognizes that if prior to the date for performance of the contract it is clear that one of the parties will commit a breach of contract, the other party may terminate the contract. This is accepted into report of 2013 Revision of Korean Civil Law. The CISG's regulations are that threatened non-performance must be fundamental and obvious. Reasonable notice does not apply if the other party has declared that he will not perform his obligations. The PICC and the PECL are very similar in terms of the content. Both entitle the aggrieved party to terminate the contract for ‘anticipatory non-performance’, by which is meant an obvious unwillingness or inability to perform where the failure in performance would be fundamental. The effect is that for the purpose of the remedy of termination an anticipatory fundamental non-performance is equated with a fundamental non-performance after performance has become due. It is a DCFR that has been followed by a PECL. Contrary to the PICC or PECL, termination for anticipated non-performance of DCFR is similar to CISG. The CECL does not require the best of its kind in the CISG regulations. The Article 116 of CECL is compared to the Article 72 of CISG. The Clause 2 of the Article 544 of the Korean Civil Law stipulates that avoidance of contract can be made without notice. However, there is a disagreement on whether repudiation before performance is due(anticipatory breach) can be treated as a new type of non-performance. It suggests that anticipatory breach be acknowledged as a new type of non-performance by providing its legal basis. Finally, this study introduces various views on anticipatory breach expressed in the discussions on the revision of the Korea Civil Law, and suggests the direction for the revision of anticipatory breach.

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