The effect of the impossibility of returning the original property in the restoration of the original state due to cancellation
Authors:   Legal Research Institute of Chonnam National University, Lim Byung-Seok 
Published: March 2023

In social life, it is not uncommon for contracts of sale to be canceled. This includes contract cancellation, such as contract cancellation or cancellation pursuant to Article 565, or statutory cancellation due to delay in performance or inability to perform. At this time, the prevailing view and the Supreme Court regard the relationship of restoration to original state due to cancellation as the relationship of return of unjust enrichment, which is related to legal claims, and apply the provisions on the return of unjust enrichment unless there are special provisions such as Article 548 regarding restoration to original state. However, there are still many issues that remain unresolved here. One of such issues is the issue of liability for damages and risk bearing due to the impossibility of returning the original goods in the restoration of the original state due to cancellation, and the rightt of vicarious compensation Through this article, we will discuss the subject and scope of the obligation to return the original property and value in restoration of the original condition due to the cancellation of the sales contract, the right to make a claim for damages and the right to claim compensation for damages (Article 390) due to the impossibility of returning the original property, and the risk bearing problem. I looked. In particular, although there is no express provision in the Civil Act, the dominant view and the right to claim the subject recognized by the Supreme Court are not only recognized in the case of inability to pay (impossibility to perform), etc. I knew that it could be accepted in any case. And apart from the liability for damages caused by default on the basis of the default that caused the statutory release, if the recipient's intention or negligence is recognized for the impossibility of returning the original state due to the release, the recipient also claims to the beneficiary at this time. It was also confirmed that it could bear the liability for damages under Article 390. For example, if the buyer, who is the recipient who is to deliver (return) the object to its original condition after the contract is canceled due to the buyer's delay in paying the price, loses the object by negligence, Since the recipient, obligated to return the object, violated the duty of care of a good manager in keeping the object and destroyed the object, he is liable for damages caused by the non-fulfillment of obligations. Compensation is caused by non-fulfillment of contractual obligations, and compensation for damages due to inability to return original goods in restoration to original state due to cancellation is caused by non-fulfillment of statutory obligations, which is the obligation to restore the original state. In addition, regarding Article 553, which stipulates the special cause of extinction of the right of rescission, the prevailing opinion affirms the application of Article 553 even before the right of rescission occurs, but it is difficult to agree with the above view because the extinguishment can only be discussed after the right of rescission has occurred. It is hoped that this article will be of some help in understanding the nature and effect of the obligation to restore the original state due to cancellation.