民法 第483條 第1項에 의한 利害調整

• 영문명: A Study on the matter of profit reconciliation between the partial-performer and the creditor
• 발행기관: 한국민사법학회
• 저자명: 정석택(Jung, Suk Taek)
• 간행물 정보: 『민사법학』제47호, 757~796쪽, 전체 40쪽
• 주제분류: 사회과학 > 사회과학일반
• 파일형태: PDF
• 발행일자: 2009.12.31

영문 초록

Recently, many questions have been raised in the field of Korean civil law about the adequacy of performer s subrogation, in respect to the proper allocation of obligation, when the main debts are extinguished through the payment by the guarantor, Mulsangbojeung-in(person who pledged one s property to secure another s obligation), or a third party purchaser who acquires the security. The matter has been brought into consideration because various cases of performer s subrogation of real transactions in Korea are solved through Article 482 of civil law. Further, there has been growing criticism of Article 483 in the civil law, as the matter of profit reconciliation between the partial-performer and the creditor emerges; this study aims to check the validity of such criticism and reach an adequate solution. Concerning the legal characteristics of performer s subrogation, there are conflicting views between the theory of credit transfer and the theory of substitution repayment. Considering that the purpose of subrogation is to surely secure the recovery of performer, the theory of credit transfer is viewed as appropriate. Clause 1 of Article 483 in the civil law is construed as if partial performers and the creditors are in equivalent positions. But such interpretation can distort material transactions and could be unfair to all parties, namely the creditor, debtor and partial performers. Therefore, Article 483 of the civil law should be understood only in a manner that allows partial performer, in any time, to use it s right as the creditor only together with its creditor, as dual action. Further, first priorities such as mortgage rights are given to the creditor.

목차

Ⅰ. 序論

Ⅱ. 債權者와 一部代位者間의 權利歸屬關係

Ⅲ. 數人이 一部辨濟한 경우의 關係

Ⅳ. 結論

참고문헌

키워드

변제자대위 일부대위변제자 채권자와 일부대위자간의 이해조정 채권자의 담보보존의무 subrogation partial performer profit reconciliation between the partial-performer and the creditor duty of the creditor to preserve collateral