변제자대위에서 이중지위자의 부담액 산정에 관한 판례 재검토

• 영문명: A Review of Judgment on the Calculating Method of the Burden of the Dual Status Person in Payment with Subrogation
• 발행기관: 충북대학교 법학연구소
• 저자명: 정상현(Jung, Sang Hyun)
• 간행물 정보: 『법학연구』第29卷 第2號, 245~271쪽, 전체 27쪽
• 주제분류: 법학 > 법학
• 파일형태: PDF
• 발행일자: 2018.12.30

영문 초록

The guarantors or the property guarantors insure others debts. If there are several guarantors and property guarantors, in order to determine the burden between them, Article 482 (2) 5 of the Korean Civil Code(KCC) provides two criteria, the proportion of the number of persons and the value of the property. However, in case of a person who acts as both a guarantor and a property guarantor, above KCC does not provide any criteria for estimating his burden. The court has only concluded that sees him as only one. The theories are very diverse. However, any theory is inadequate as a criterion for fairness of his burden. I think we need a new calculation method that is outside the provisions of our civil law. A dual status person can not be identified as a guarantor or a property guarantor. They should determine their own burden on the basis of their will of guarantees for the debt. (1) Under the existing KCC provision, as interpretation theory, I propose the following method. The dual status person must be treated as a guarantee if the value of the collateral provided by him falls short of the main debt and he is treated as a property guarantee if it exceeds of the main debt. (2) As legislation, I propose the following method. The ‘base amount’ of the each shall be determined according to the guarantor s will. Their each burden is calculated by dividing each base amount by the sum of the each base amount.

목차

Ⅰ. 대상판결

Ⅱ. 평 석

Ⅲ. 결 어

키워드

구상권 보증인 물상보증인 제3취득자 이중지위자 변제자대위 단일지 위설 Guarantor Material guarantor Third acquirer Dual status Subrogation