Rethinking the contract remedies ( 2006 )

合同救济存在诸多问题。本文的研究主要集中在卖方交付缺陷货物时买方的救济问题，这是合同救济理论中最重要也是最具争议性的问题之一。对日本民法、中国合同法、韩国民法、韩国民法典修正案、台湾民法典、德国民法典等问题进行了比较法研究。我最感兴趣的是买方的几种救济之间的关系，特别是买方要求随后完成履行的权利和要求降低价格的权利之间的关系。德国民法典规定，受害的买方在要求降低价格之前，应首先要求卖方完成随后的履行。我认为德方的立场值得商榷。卖方提供有缺陷的货物，损害了买方的信任。在这种情况下，买方有正当理由担心终止与卖方的关系。因此，买方应有权立即要求卖方降低价格，而不寻求卖方的完美履约。换言之，受屈的买受人应当选择要求随后完成或要求降低价格。笔者的研究表明，这是中国合同法机关、韩国现行民法以及韩国民法典的修改所采取的立场。但台湾民法典的主导性原则尚不明确，笔者通过比较法研究论证了中国民法典学说与韩国民法学说、现行及修订后的韩国民法所采取的立场是正确的，也是日本民法典修改应采用的立场。

There are many problems about the contract remedies. My study mainly focuses on the buyer's remedies when the seller has delivered a defective goods, one of the most important and heavily debated issue among those on contract remedies. I did comparative law study on the issue of the Japanese civil law, the Chinese contract law, Korean civil law, the amendments of the Korean civil code, the Taiwanese civil law and the German civil code. I was most interested in the relation among several remedies of the buyer, specifically, the relation between the buyer's right to demand the subsequent completion of performance and the right to seek for the reduction of the price.The German civil code provides that the aggrieved buyer should first demand the subsequent completion of performance by the seller before demanding the reduction of the price. I believe the German position is questionable.The seller has damaged the reliance of the buyer by furnishing the defective goods. In the situation the buyer has a legitimate concern for discontinuing the relations with the seller. Therefore the buyer should be entitled to immediately demand the seller to reduce the price without seeking for perfect performance by the seller. In other words the aggrieved buyer should choose either to demand the subsequent completion or demand the reduction of the price. The both remedies should be on the same level without any priority between them.My research reveals that this is the position adopted by the Chinese contract law authorities, the current Korean civil law, and also the revision of the Korean civil code. However, the dominant doctrine of the Taiwanese civil law is unclear.I argue through the comparative law study that the position adopted by the Chinese civil law doctrines and Korean civil law, current and revised be the right one and that it is the position to be adopted in the revision of the Japanese Civil Code.