民法 제536조 同時履行抗辯權 規定 適用의 範圍와 效果
The Scope and Effect of Application of Section 536 (Defense of Simultaneous Performance) Korean Civil Code
김천수
초록
In this paper, it is suggested that the debtor, that is, the defendant, should have the right to refuse to accept a claim by the creditor, being the basic element of a defense of simultaneous performance, if Section 536 of the Korean Civil Code applies to him or her. The court should take into account in judgment the defendant’s such refusal right and its derivative effects, as long as the refusal right comes to the attention of the court during the proceedings between the defendant and the creditor, even if the defendant has not expressly exercised the refusal right. Consequently, the defendant shall be exempt from the liability for delay in performance of his or her obligation to the extent of the same amount; the plaintiff shall not setoff any account receivable by the defendant against the plaintiff’s claim not so accepted by the defendant. The court should entertain the plaintiff’s claim on the condition that the plaintiff is only entitled to enforce the claim in exchange for the performance of his or her obligation as a quid pro quo. One idea behind the above mentioned suggestion is that it is unjust if one party should conduct his or her obligation without the other party’s performance of the obligation under the concurrent performance condition so that the latter could enjoy a windfall. The other idea is that the suggestion is helpful for the effective dispute resolution. According to the legal theory of civil procedure law, the court could take into account in judgment the defense of fact in substantive law, as long as it comes to the attention of the court without the defendant’s express pleading of the defense, but the court could do so in the case of the defense of right in substantive law only with such express pleading of defense. However the theory would not be proper at least in the case of performance of obligation under the concurrent performance condition.