채권의 일부양도의 허용한계 및 채무자의 법적보호의 충돌문제 ╶ 채권의 일부 양도에 대한 비교 연구 ╶

Abstract

The Korean Civil Court and the school of thought have developed the argument on the premise that the acceptance of transfer of partial assignment is permitted. However, in the Korean Civil Act(Code), there is no provision in the Civil Code. As the number of debtors is not fluctuated but only the number of creditors is changed, There is a question about whether the same legal logic should be applied in case of increasing the number of creditors and in case of transfer of all bonds with the same number of creditors. The Korean legislative system focuses on the disposition (disposition) act of transferring bonds from the creditor to the transferee. On the other hand, in the Restatement, there is a difference in that the assignment of the bonds includes not only the disposition but also the fact that the assignee have a direct right against the obligor to the performance of partial assignment. In Korea's civil law system, partial assignment must be specified, Likewise, in the Contact Law Restatement § 326 Subsection (1) appears to require the use of any form of 'specified', using the expression 'Whether the part is specified as a fraction, as an amount, or otherwise'. In Restatement § 326, if there is a transfer of a portion of the bond, the transferee shall have the same right as if it had a separate bond from the beginning on a portion of the bond that was transferred, so that the debtor does not undermine the rights of some transferees by repaying all of the bonds to the transferor. On the other hand, the debtor is allowed to refuse to perform part of the bond, and the balance between the transferee and debtor is solved through ‘joinder’. The Korean Civil Code does not focus on discussion the risk that the debtor will be sued several times and discusses that risk in the area of the limit of transfer of a portion of the bonds and suggest that the status of the debtor should not be excessively disadvantageous. However, it is a very abstract standard that the status of the debtor should not be excessively disadvantageous. Even if the introduction of the joinder system is not enough, The joinder of the US contract law gives a considerable implications to Korean civil law. It is expected that legal issues related to the partial assignment can be largely solved by introducing a legal system that functions the same as or similar as the joinder system.