대체물 인도의무의 집행불능에 대비한 대상청구 - 대법원 2024. 7. 25. 선고 2021다239905 판결에 대한 평석을 겸하여

• 영문명: Substitute Claim in Anticipation of the Impossibility of Execution of the Obligation to Deliver Fungible Goods
• 발행기관: 한국민사소송법학회
• 저자명: 전휴재(Huy Jae Chon)
• 간행물 정보: 『민사소송』제29권 제1호, 255~298쪽, 전체 44쪽
• 주제분류: 법학 > 법학
• 파일형태: PDF
• 발행일자: 2025.02.28

국문 초록

The Supreme Court's decision on July 25, 2024, in case 2021Da239905, pertains to a matter involving a claim for the delivery of shares, which are fungible goods, and a substitute claim in anticipation of the impossibility of execution. This decision provides a concise and accurate ruling based on a legal understanding of the substantive nature of the substitute claim, the procedural nature of the joinder of the original claim and the substitute claim, the occurrence of the right to claim damages under Article 395 of the Civil Code and the right to refuse acceptance in the event of the impossibility of execution of the original obligation, and the effect of the performance of the original obligation after the occurrence of the right to refuse acceptance. It also reasonably addresses the detailed issues included in the grounds for appeal to reach a valid conclusion. The substitute claim, which is filed in conjunction with the original claim in anticipation of the impossibility of execution of the original claim, historically began mainly in relation to claims for the delivery of grains such as rice, but recently it has been widely used for fungible goods with significant economic value in modern society, such as stocks and Bitcoin. In terms of its legal nature, the substitute claim is a substantive right to claim damages under Article 395 of the Civil Code, but in the execution of non-monetary claims such as the obligation to deliver fungible goods, it functions as a practical and effective means of execution by supplementing the difficulties of execution through direct compulsion with monetary execution. Despite its importance, there has been little research or recent case law on the substitute claim in anticipation of the impossibility of execution of the obligation to deliver fungible goods in South Korea. It is hoped that this Supreme Court decision will serve as an opportunity for extensive and in-depth research in practice and academia on related issues, including whether to allow separate remedies for creditors or debtors in the event of a change in the value of the original object of performance after the conclusion of the fact-finding hearing.

목차

Ⅰ. 들어가며

Ⅱ. 대상판결의 개요

Ⅲ. 본래 급부의무의 집행불능에 대비한 대상청구

Ⅳ. 본래 급부의무의 집행불능

Ⅴ. 대상판결에 대한 검토

Ⅵ. 마치며

키워드

집행불능 대상청구 전보배상청구권 수령거절권 사실심 변론종결 Impossibility of Execution Substitute Claim Right to Claim Damages Right to Refuse Acceptance Conclusion of Fact-Finding Hearing