부진정연대채무의 법률관계에 관한 소고 - 대법원 2006. 1. 27. 선고 2005다19378 판결의 검토 -

Abstract

In connection with Korean Supreme Court Decision 2005da19378, this Article treats concretely the following main points at issue. First, this Article starts with the concept and types of untrue joint and severable obligation. Second, it is demonstrated whether each of untrue joint and severable debtors has his or her own share of obligation. Third, it is examined whether in the case an untrue joint and severable debtor repays debt over his or her own share of obligation, if he or she has his or her own share of obligation, the effect of repayment influences the other untrue joint and severable debtors or not. Fourth, it is explained whether an untrue joint and severable debtor who repaid debt over his or her own share of obligation could execute the right of indemnification to the other untrue joint and severable debtors, if the effect of repayment influences the other untrue joint and severable debtors, that is, the effect of repayment is absolute, not relative. Fifth, it is examined how an untrue joint and severable debtor’s share of obligation is determined. Finally, this Article ends with the contemplation of whether the release of an untrue joint and severable debtor from debt influences the other untrue joint and severable debtors or not, to put it another way, whether the effect of the release is absolute or relative. The legal principles on untrue joint and severable obligation will obtain more concrete validity, not destroying legal stability, by this Article’s study like this which is more faithful to provisions of Korean Civil Code, the purpose of introduction of the legal principles, etc.