독일의 건축공사 대금채권담보에 관한 고찰

Consideration on Methods of Contractor over Securing Bond In Germany

The Civil Act 665, 1 ordains payment in building contract to be made when the subject-matter finished is transferred, i. e. as those of the concurrent relation in building contract are the transfer of completion works and the issue of payment, A contractor can t get paid in building contract until he redeems most of benefit first in the process of completing works, and transfer the building later. Such as this, a contractor should redeem first in completing works and supplying material in building contract. However, if an undertaker doesn t make payment, it is impossible or meaningless to recover the provision of completion works and material provided by canceling the contract. Hence, the civil law imposes condition precedent on a contractor and accepts settlement of mortgage over materialization of the provision of a contractor as the necessary complementary measure. As such, our Civil Act 666 ordains an estate contractor can request for a right to settle a mortgage to the subject-estate to guarantee a right to request for payment, which abolishes Des privilèges spéciaux of the past civil law in the existing civil law and regulates new rules following German Civil Act 648,1. Yet, although our Civil Act 666 was setup with the support of the academic world when the civil code was established, there are much doubts in its effectiveness. German Civil Act 648, 1 which had a big influence on our Civil Act 666 has been also criticized in the past as a noneffective system as a means of security for a bond of a contractor and various solutions were suggested to cover these problems. In German law, the subject about securing a bond of a contractor of an estate construction starts from condition precedent of a contractor and loss of an ownership of material corresponding to the land of building. German Civil Act 648 complies with the principle of disclosure of registry and ranking, therefore acknowledged as not enough at all for protecting construction creditors like material suppliers as well as subcontractors already in the legislation step. As a result, it tried to solve the problem including dealing with construction fraud through a special law, which are Verdingungsordnung für Bauleistungen , Gesetz über die Sicherung der Bauforderungen vom 1. Juni 1909 . But judicial regulations under Gesetz über die Sicherung der Bauforderungen vom 1. Juni 1909 could not be executed and the problem German Civil Act 648 has come to surface all the more under the circumstances of specialization of construction industry after the World War II. To solve these problem, German Civil Act 648, a was legislated finally in 1993. German Civil Act 648, a leaves German Civil Act 648, 1 as it is, and set up in the way giving a right to cancel a contract itself as well as a right to reject the execution of provision to a contractor partially when a right to request a provision of security and security, according to the progress of building. Hence, Various suggestions and German Civil Act 648 a, which was offered to complement German Civil Act 648,1 is assumed to provide lots of implications in amendment and interpretation of our Civil Act 666.