제3자를 위한 계약의 발전과 일본민법의 대응

Abstract

South Korea’s contract for the benefit of third parties under civil law was both directly and indirectly influenced by Japanese civil law and legislation process. However, it was not clear in Japanese civil law when such a contract would apply because the contract regulated only basic and general principles. Thereafter, Japanese civil law made a revision bill about third-party contracts in 2009 by the Review Committee for Civil Law (the Law of Obligations) Revision because various problems have occurred continually which were never expected when the civil law was established. The Review Committee for Civil Law (the Law of Obligations) Revision provides five forms of the contract for the benefit of third parties depending on the rights and benefits that the third party takes. The following five forms have been controversial in theories and case laws, and they were reflected in the revision bill: 1) person enriched acquires claims without obligation (Acquisition of Claims form); 2) person enriched acquires claims with obligation (Acquisition of Claims with Charge form); 3) person enriched does not have obligation to promissor (Release of an Obligation form); 4) Formation of Contract form; and 5) recognized invocation of a clause of discharge or limitation of liability (Invoking Clause form). Because the contract for the benefit of third parties originated in civil law, article 539(1) of civil law has had legislative problems that should be solved, such as abstruseness, possibility of misunderstanding, excessively simple clauses, and appropriateness of expression of benefit. Thus, the revision bill proposed currently by the Review Committee for Civil Law Revision in Japan can suggest some great ideas for solving these kinds of legislative problems.