3 당사자 관계에서 ‘손해의 발생’- 유형 및 해결, 소송의 주관적·예비적 병합 등과 관련하여 -

Abstract

The damage in relationship of three parties is a kind of legal situation between one creditor and two debtor. It depends on debtor C whether the damage occurs as the requirement of the creditor A’s Claim for Damages to debtor B. For example, if B, A’s employee gives A’s money to wrong creditor C by his fault, A has to compensate A’s money. But if at the same situation, C returns the money to A, B need not pay to A. Because the damage is extinguished by C’s return. On the view point of Theory of the Balance, the traditional opinion on establish of the damage, the damage can not be established in this situation. Because comparing the result of before B’s misfeasance and after, the difference of the whole property of A can not be occurred. Because A has a Claim for Damages to C as a substitute to the damage. But in the same situation Theory of the Normative Damages can say the damage has occurred at the time when B gave the money to C. Judecial Precedent by Supreme Court has both cases admit A’s Claim for Damages to debtor B and deny it. In this situation our civil law was judged that has the view point of Theory of the Normative Damages that admits A’s Claim for Damages to debtor B. Because the provision of article 399 states a compensator who paid all of debt can have and exert creditor’s right about that receivables that was paid(Subrogation).