不眞正連帶債務-共同不法行爲를 中心으로-

Abstract

Widely known, traditional theory was classified into two parts that how much range a joint debt and an unfaithful joint debt had absolute effects to a creditor and whether they had a claim for compensation to each creditor or not. However, though a majority proposal and a leading case considers torts especially an joint torts as an unfaithful joint debt, it admits absolute effects extensively and mutual claims for compensation. A mutual compensation in an unfaithful joint debt has only mutual effects. However if an absolute effect is not admitted in this mutual compensation, a creditor get an unfair benefit more than his claims. In other words he is given a double benefit. Therefore in an unfaithful joint debt, if mutual effect for mutual compensation is approved, it is opposed to the fair compensation that is one of the main purpose in the joint torts actions. In addition, in this joint torts, a right to indemnity doesn't admit the character of debt according to the joint debt or the unfaithful joint debt. So because one of offenders charged parts that each joint tort-feasor actor should pay, what an offender claims for compensation to other offenders about over liability that he should pay is unfair and unjustice. As a result the concept of unfaithful joint debt is an union relation between joint and several debtors, that is just an implement concept to fix debt relation among large offenders by German ideal law. Accordingly I don't agree that they classify a claim relation between large offenders into a joint debt or an unfaithful joint debt in the same way.