대한민국 정부의 제3자 변제방안의 민사법적 문제점 - 당사자의 의사와 이익의 시각에서의 비판 -

Abstract

In 2023, the South Korean government announced a ‘compensation by the third party plan’ as a solution to the problem of forced mobilization during the Japanese occupation of the Korean peninsular(1910-1945). The South Korean government(Foundation for Victims of Forced Mobilization by Imperial Japan) has offered compensation to the victims and survivors insisting that the legal liability of the Japanese companies should be legally unleashed by these offers. The South Korean courts, however, confirmed that the Korean government’s offers against the intention of the victims are legally not valid, citing the Article 469 of the Korean Civil Code, which states that the performance by third party other than debtor is not valid if it is against the creditor’s intention or it is not permitted by the nature of the debt. If the Korean government needs to compensate the victim on behalf of the Japanese government or companies, it could have done it validly using other legal options including but not limited to agency, debt assumption, or performance assumption according to Korean Civil Code. As the Japanese government has been denying the liability to the victims of the forced mobilization, it remains difficult to find any alternative solution. The validity and legality of performance by third person in monetary debts should be by the intention and interest of each party. Each party may object to the performance by third person, as it is related not only to the extinguish of the debt, but also to the subsequent effects of surrogation. In terms of the benefit of the parties, the creditors may also object to the performances by third person if they are not beneficial to them. Although the South Korean government’s offers could resolve the diplomatic conflict between South Korea and Japan, the Korean government does not have any legitimate interest to the performance of the debt against the intention and interest of the victims. The Korean government’s performance for the Japanese government or corporations is legally invalid when both creditors and debtors, the victims and the Japanese parties, explicitly object it.