제3자를 위한 계약의 재검토 − 새로운 형태의 보증을 중심으로 −

Abstract

By contract, as a basic institution of legal thought, the parties may arrange that the third party acquires the right to demand the performance directly. It never vests in the promisee, he only may acquire the right to claim that performance be rendered to the third party. By a contract of suretyship the surety puts himself under a duty to the creditor of a third party to be responsible for discharging that third party’s obligation. The contract for the benefit of the third parties has been found on the variety of surrounding pheonomena, especially on the area of suretyship. It is a new type of Surety, but the contract for the benefit of the third parties are of practical importance. In case of insurance such a profit of suretyship ; guaranty insurance policy, insured sum will be paid to the third party on the occurrence of the insured event - non performance of the main debtor. The main function of performance base enrichment is to find a satisfactory solution for multipartite who is performing within contractual relationship involving chain of performance. If any contracts within the chain of performance is imperfect, restitution must occur between adjoining parties in the chain, the rule against leap- frogging is very important. Performance based restitution between three or more parties has become one of the most controversial areas. In case the parties concerned have differing views about has performed toward whom, a contractual approach has a acid test in case of the contract for the benefit of the third parties. The main obstacle is the dogma of privity of contract which creates rights and duties only for and against the parties. The relationships of performance are decisive for the way in which enrichment is returned. On the reasoning, the legal theory of the contract of surety may be applied on the new type of the suretyship. But it is very controversial.