民法 第483條 第1項에 의한 利害調整

A Study on the matter of profit reconciliation between the partial-performer and the creditor

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.