債權者 危險負擔에 있어서 債務者의 利益償還義務

• 영문명: A Study of the Debtor s Duty to Reimburse the Profit under the Creditor s Risk of Loss
• 발행기관: 한국민사법학회
• 저자명: 이우진(Lee, Woo-Jin)
• 간행물 정보: 『민사법학』제34호, 49~91쪽, 전체 43쪽
• 주제분류: 사회과학 > 사회과학일반
• 파일형태: PDF
• 발행일자: 2006.12.31

영문 초록

When the creditor bears risk of loss, the debtor has to reimburse the profit he has gained by being relieved of his own obligation. This study aims at analyze the debtor s duty to reimburse the profit under the creditor s risk of loss in the bilateral contract. And we have observed that there are various provisions in Germany that deals with profit reimbursement. Meanwhile Uniform Commercial Code has prescribed about risk bearing but there is no additional provision about profit reimbursement. However the Back Pay principle, which is the principle about the money to be paid to unfairly dismissed employees for work he or she did in the past, confers duty to reimburse on unfairly dismissed employees. Therefore when we discuss about profit reimbursement, it is necessary to thoroughly take each country s situation into account. On the other hand, there is only one article about profit reimbursement, Section 538 paragraph two, in Korean Civil Law, but with application of other individual contract rules, we can expect the same effect as applying the rule of profit reimbursement and I have described such point with examples of the employment contract and the contract for work. The case of unfair dismissal from work has been the major application of Korean Civil Law Article 538 paragraph two and there has been many discussions about if the dismissal is decided as invalid, then whether the profit employee has earned by taking another job while he was dismissed is considered as the subject of the reimbursement of Article 538 paragraph two. As we have seen in the Back Pay rule, we have to decide the degree to which we have to relieve the victim that conforms the Principle of Equity and such degree differs depending on each country s situation. Therefore this study s point of view is that in the case of profit reimbursement of unfairly dismissed employees, we have to apply with care to seek protection of the employees who are economically weak.

목차

Ⅰ. 序說

Ⅱ. 債務者의 反對給付履行請求權의 法的 性質

Ⅲ. 債務者의 利益償還義務

Ⅳ. 結語

키워드

급부불능 위험부담 이익상환 휴업수당 부당해고 손익상계 소급지급임금 Impossibility of Performance Risk of Loss Reimbursement of Profit compensation for business suspension wrongful dismissal setoff of profit and loss Back Pay