대상청구권에 대한 입법론적 소고

A Legislative Study on the Claim Right of Vicarious Compensation - For the Focus on the Revised Draft of Civil Code -

There is no provision on the claim right of vicarious compensation in Korean Civil Code. Nevertheless, the majority of literatures and the precedents are acknowledging the claim right of vicarious compensation for a creditor based on the “principal of equality” or “economy fairness”. In the light of comparative law, German Civil Code and French Civil Code are the provision on the claim right of vicarious compensation, the majority of literatures and the precedents in Japan are acknowledging the claim right of vicarious compensation, and the committee of revision of Japan Civil Code are proposing about it, even though there is no provision on the claim right of vicarious compensation in Japan Civil Code. Also, the majority of literatures and the precedents in Austria and Swiss are acknowledging the claim right of vicarious compensation without the provision on the claim right of vicarious compensation in their Civil Code. The acknowledgment of the claim right of vicarious compensation by interpretation brings about many problems, such as damage compensation, unjust gain, risk of loss, rescission of a contract etc. Therefore, the committee of revision of our Civil Code are proposed to take foreign civil codes into account: ① If the debtor is bound to make compensation for the value of an object or rights to the obligation, because of the impossibility of performance, the creditor may demand interest on the amount to be paid as compensation. ② If the creditor may demand compensation for any demage arising from the default, according to the par. 1, the debtor is bound to make compensation for the diminution in value of an interest, from the time which serves as the basis for the estimate of the value. All of the theories that serve as the basis for the acknowledgment of the claim right of vicarious compensation have issues of their own. The main issue is whether the claim right of vicarious compensation is required to be acknowledged. Even if it is acknowledged, such the problems as the legitimated ground and the recognition range of the acknowledgment, and whether the excess earnings is bound to make compensation to creator will be raised. Therefore, this paper is trying to deal with these issues, which have been arisen by legislation of the claim right of vicarious compensation, and suggest resolving the legal confusion by providing with legal provision.