대상청구권에 대한 입법론적 고찰

A Legislative Study on The Claim Rights of Vicarious Compensation in Korea

When an obligation become insolvent after the fact, the Korean civil law provide that if it is caused by obligor's responsibility, he should take the burden of the debt, but he can be released from the debt if the default is not his own responsibility. In the latter case, meanwhile, it become an issue whether a consideration duty exists or not if the obligation is based on a bilateral contract. Accordingly, it has been settled by the provision of the risk bearing. The claim rights of vicarious compensation mean the creditors' right of recourse on the profit against the obligators when debtors make profits on vicarious compensation of the object to be fulfilled by the same causes which raised the insolvency. The Korean civil law has no provision on the claim rights of vicarious compensation, but the rights are expressly provided in substantive enactment of Germany and France. The rights are acknowledges, but the application scopes are different by each country in various cases like above, and the requisites and the effectiveness are as well. Moreover, the meaning of the claim rights of vicarious compensation in legal schemes and the harmonizations of the laws with other civil law systems are different due to the differences in the ways of the transfer of a real right and the principles of risk bearing etc. of the countries. In conclusion, due to the problems in itself as well as possible conflict with existing system and fairness breaking result of the acknowledging the claim right of vicarious compensation, it is reasonable that the Korean civil law should not acknowledge the claim rights of vicarious compensation.