다수당사자 채권관계에서의 분할주의원칙 제한을 위한 합리적 모색

• 영문명: A Study on the Presumption of Solidarity for Separate Obligations Restriction
• 발행기관: 한국재산법학회
• 저자명: 윤태영(Yoon, Tae-Young)
• 간행물 정보: 『재산법연구』財産法硏究 第26卷 第3號, 1~27쪽, 전체 27쪽
• 주제분류: 법학 > 법학
• 파일형태: PDF
• 발행일자: 2010.02.28

영문 초록

The Korean Civil Law art. 408 stipulates a principle that obligations are separate when each debtor is bound to render only part of the performance and the creditor may require from each debtor only that debtor's part. However, this principle is regarded to have weakness in securing effectiveness of credit, as it neither consider security solvency nor reflect the current transactional practice. Therefore, many scholars, when they construe this article, have tried to restrict the establishment of separate obligations and to construe the provision to prescribe indivisible obligation with strong security solvency or solidary obligations. Majority opinion even construes it to prescribe presumption of solidarity. Court, having perceived the problem of security solvency, have also construed the article to include indivisible obligation in various cases. But court have not judged that the article could be construed to include presumption of solidarity, which is criticized by many scholars. However, it is not appropriate to construe the article as indivisible obligation even for monetary debt. Besides, in the light of legislative history, it is not possible to construe the article to prescribe presumption of solidarity. After all, a solution to construe the Korean Civil Law art. 408 to meet the current transactional practice can be moderated interpretation which recognizes it to prescribe solidarity implicitly. This research examined this issue through historical review and suggested a solution.

키워드

다수당사자의 채무 연대의 추정 분할채무 연대채무 불가분채무 담보력 Plurality of Debtors Presumption of Solidarity Separate Obligations Solidary Obligations Indivisible Obligations Security Solvency