프랑스 민법 연구의 성과 및 향후의 전망 - 채권자대위제도의 운용을 중심으로 -

• 영문명: The Fruition and Future Prospect of the Research of French Civil Law - Focus on the Application of the Obligee's Right of Subrogation -
• 발행기관: 한국사법학회(구 한국비교사법학회)
• 저자명: 명순구(Soon-Koo Myoung)
• 간행물 정보: 『비교사법』비교사법 제12권 1호, 59~86쪽, 전체 28쪽
• 주제분류: 법학 > 법학
• 파일형태: PDF
• 발행일자: 2005.03.01

영문 초록

In the adoption of a legal institution from other country, the object of adoption is not the lowest stratum of culture that has formed the law, but the abstract law as a manner of expression of human rationality. Even though we adopt a legal institution from a particular country, it does not mean that we have to administer it completely in accord with the original one. Instead, each country has to administer the legal institution through forming a legal culture which meets with it's own legal reality. Therefore, the manner of the administration of a ‘legal institution’ in original country may be different from that of the country which adopts it even though they're the same one. In this case, there is a discrepancy between the manners of administrating the same legal institution. But if the discrepancy is based on the reasonable grounds, it will be justified. What if there are no reasonable grounds for this discrepancy? Each legal institution has to accomplish the original normative function according to the legal purpose of itself. Moreover, a legal institution is sometimes related to other legal institutions under the entire legal system. Therefore, the misunderstanding of a legal institution, and the misuse or misapplication resulted from the misunderstanding of a legal institution may damnify the integrity of the entire legal system by affecting the purity of other legal institutions with which the misunderstood legal institution directly or indirectly connected. This article is written under the awareness of those problems as noted above. In this article, the roots of the standpoints of authorities and doctrines relating to the application of the obligee's right of subrogation(especially the diversion of the obligee's right of subrogation to other purpose) have been analyzed and the specific alternative has been groped to solve the problems. Doctrines relating to the obligee's right of subrogation severely differ from each other in every part of the controversy of its nature, requisite and effect. However, the fundamental reasons for the differences among doctrines is caused by the fact that doctrines have not established a clear boundary between the obligee's right of subrogation and the right of direct claim(direct action). To sum up, in the light of the importance of the principle of relative effect of a claim, without a reasonable standard, the use of the obligee's right of subrogation should not be expanded simply on the ground of practical needs. In spite of the fact that the use of the obligee's right of subrogation should not be expanded, existing doctrines and authorities have been having a tendency of misusing or misapplying it. This tendency is caused by the fact that existing doctrines and authorities have not made a strict distinction between the obligee's right of subrogation and the right of direct claim(direct action). The reason that the boundary of those two rights is not clear is because of the influence of Japanese jurisprudence. A so- called “the diversion of the obligee's right of subrogation to other purpose” which has discussed under the realm of the obligee's right of subrogation should not be considered as a type of the obligee's right of subrogation but as a type of the right of direct claim(direct action). By considering as above, we can not only maintain the consistency of legal system but also meet the practical demands of transactions.

목차

Ⅰ. 서설

Ⅱ. 소위 ‘채권자대위권의 전용’의 실상

Ⅲ. ‘채권자대위권 전용’의 근원과 이론적 난점

Ⅳ. 새로운 해결책의 모색: 직접청구권에 의한 해결

Ⅴ. 맺음말

참고문헌

Abstract