다수당사자 채권관계에서의 분할주의원칙 제한을 위한 합리적 모색 -‘연대의 추정’에 대하여 비판적으로 검토하며-

Abstract

The Korean Civil Law art. 408 stipulates a principle that obligations are separate when each debtor is bound to render only part of the performance and the creditor may require from each debtor only that debtor's part. However, this principle is regarded to have weakness in securing effectiveness of credit, as it neither consider security solvency nor reflect the current transactional practice. Therefore, many scholars, when they construe this article, have tried to restrict the establishment of separate obligations and to construe the provision to prescribe indivisible obligation with strong security solvency or solidary obligations. Majority opinion even construes it to prescribe presumption of solidarity. Court, having perceived the problem of security solvency, have also construed the article to include indivisible obligation in various cases. But court have not judged that the article could be construed to include presumption of solidarity, which is criticized by many scholars. However, it is not appropriate to construe the article as indivisible obligation even for monetary debt. Besides, in the light of legislative history, it is not possible to construe the article to prescribe presumption of solidarity. After all, a solution to construe the Korean Civil Law art. 408 to meet the current transactional practice can be moderated interpretation which recognizes it to prescribe solidarity implicitly. This research examined this issue through historical review and suggested a solution.