民法改正案의 保證條項에 대하여 ― 改正趣旨와 解釋論 ―

Abstract

The preparatory work for the amendment to the first three Books of the Korean Civil Code (“KCC”) began on February 1, 1999, when the Special Committee for the Civil Code Amendment (“Committee”) was established as a subcommittee of the Legal Advisory Commission in the Ministry of Justice. The Committee recently wrapped up its discussions, and the final results of the work became public as a “Preliminary Announcement of Legislation” in June this year. In this article the author tries to articulate the reasons for the revision proposals on the guaranty provisions and to identify and, in some cases, answer several of the problems arising from the provisions. A guaranty (Bürgschaft) is the crown of personal surety in Korea, serving a distinguished role in financial practices. If you look into the reality of guaranty transactions, however, in many cases the guarantor signs the guaranty out of personal relationship, gratuitously and without due deliberation of the legal consequences thereof. In practice, guaranties for the benefit of financial institutions have been made in the form of a comprehensive keun-guaranty, which covers any of the obligor's obligations arising during the considerable duration, without specifying the scope of guaranteed obligations. In various cases, the guarantors were held liable as such type of comprehensive keun-guaranty was basically found valid by courts. In particular, the financial crisis since the end of 1997 has awakened the need to mitigate the overly strict guarantee liabilities. The proposed amendment of KCC introduces a formality of guaranty and stipulates creditor's notification to the guarantor. In addition, as to keun- guaranty, the proposal purports to prohibit an excessively comprehensive keun- guaranty, to limit the duration of keun-guaranty, and to stipulate newly a provision for termination upon material adverse change of circumstances. I believe these provisions are probably one of the most significant efforts for revision in terms of actual, practical influence.