부진정연대채무에 관련된 몇 가지 문제점과 유형화 시도

Abstract

Problems Related to Untrue Joint and Several Obligation & Its Categorization Our Korean civil law does not have a provision about "untrue joint and several obligation", however, there is such notion in cases and theories. There are on going discussion about several problems related to untrue joint and several obligation. The following questions are examples; whether to endorse such notion, how to decide the obligor's negligence, the effect on the obligor(whose the amount of obligation in value is less than the other obligor) where the other obligor(whose the amount of obligation in value is more than the other obligor) made partial performance, formation of recourse & legal characteristics of obligation due to recourse, etc. According to the scholars who are pro in endorsing the notion, for the joint and several obligation, it does not provide enough protection for the creditor because there are more cases where one obligor can argue the absolute effect so by endorsing such notion it can protect creditors better. However, by analyzing cases, it is noted that there are many difficulties in solve the above problems. Furthermore, there are cases which should be decided by the policy reason since the solution, which are suggested by the previous studies, also has advantages and disadvantages. This paper categorized relevant cases into three groups by the criterion of the basis of the obligation, that is, cases where such obligations arise due to joint tort, cases where the obligations arise from the same facts and form a kind of unity, and cases where the obligations have different grounds but pursue same economic effect. This paper proposes solutions to the problem of evaluation of negligence, partial performance, and legal characteristic of recourse obligation by this categorization.