Although the concept and term of force majeure is used in many laws in Korea, there are not many specific discussions about its requirements and effects. Judgments also do not seem to make a clear distinction from no-fault by discussing force majeure based on predictability and avoidability, which are the criteria for judging negligence without any special criteria. However, force majeure is an exceptional reason for which externalities are recognized among no-fault, and it can act as a reason for immunity for no-fault liability, and even if the possibility of recognition is extremely limited, there is no room for application in exceptional circumstances such as COVID-19. Since there are not many, it is necessary to examine the requirements in more detail. Comparatively, France specified externality, unpredictability, and irresistibility as elements of its establishment in the revised civil law with the definition of force majeure, while Germany does not have a definition of force majeure, but judged the above three in case law and theories is taken as a criterion.
In the British and American law, the principle of contract frustration is applied when force majeure occurs, and impossibility of performance, inability to achieve the purpose of the contract, and illegality are considered as the determining factors. Although the CISG does not use the expression force majeure directly, responsibility is exempted if there is an obstacle that is recognized as externality, unpredictability, or unavoidability. Considering the background of the appearance of force majeure at the same time as this comparative legal review, force majeure under our law should also be judged on the basis of externality, unpredictability, unavoidability, and causality. If this is applied to COVID-19, whether the government’s various regulatory measures are force majeure will depend on whether such regulatory measures could have been foreseen at the time the contract was concluded, A debtor or his/her employee’s COVID-19 infection will depend on the nature of the debt (whether it is an alternative obligation) and whether it can be avoided. However, changes in economic circumstances, such as production setbacks or difficulties in procurement of materials due to the COVID-19 crisis, cannot be considered as force majeure unless there are special circumstances. Even if force majeure is recognized, if performance is possible, performance will be suspended while the force majeure continues. The other party’s benefits will be extinguished, and the liability for damages in case of delay or inability to perform is also exempted. However, unlike other countries and some agreements, our civil law is silent about the right to renegotiate, the right to reduce the price, and the duty to notify when circumstances change, and it is necessary to consider whether to introduce it in the future.
Although the term force majeure is often found in the Korean Civil Code and many other related statutes, there is no concrete definition of its meaning nor significant scholarly discussion on its specific elements and effects. Current jurisprudence does not clearly distinguish force majeure from a related term, “without fault”, by considering only the elements of unforeseeability and unavoidability, which are prerequisites for faults. However, force majeure is different from “without fault” in that it can exempt a party from obligations even in cases of strict liability. Although Force Majeure is applied only under very restrictive and exceptional conditions, the unprecedented nature of the COVID-19 pandemic increases the applicability of force majeure to contract relations. As a comparison, the new French Civil Code has adopted a separate article on the definition of force majeure, stating there are three key elements: exteriority, unforeseeability, and irresistibility. Similarly, while Germany does not have any substantive article enacted, the same 3 elements are discussed by jurisprudence and scholars. Common law deals with this issue according to the principle of Frustration, which allows a party to terminate a contract in cases of impossibility, frustration of purpose, or illegality. CISG intentionally uses the term “impediment beyond his control” instead of force majeure or without fault, but still applies the same three elements as in France and Germany. Considering the comparable cases and the origins of force majeure, the elements of force majeure in Korea should be summarized as exteriority, unforeseeability, irresistibility (or unavoidability) and its causal link to impossibility. With regard to COVID-19, whether government’s regulations can be considered as force majeure depends on the foreseability of such measures at the time of contract execution. When an individual debtor is diagnosed of COVID-19, he/she can claim force majeure when the obligation is personal, while a debtor cannot invoke force majeure for his/her employee’s disease or increased cost for procurement. When force majeure is temporary, a contract obligation is temporarily suspended. When force majeure is permanent or temporary suspension makes the contract meaningless, the parties can terminate such contract, leaving both parties free from contract obligations or liabilities. Unlike other countries and a few international treaties, current Korean Civil Code remains silent on the notification, renegotiation, or reformation of a contract even when a change of circumstance is extremely onerous or breaks equilibrium of the contract. The need to adopt these alternatives should be further discussed.