부진정연대채무의 존재의의 - 공동불법행위에서의 부진정연대채무에 관한 일본의 논의를 중심으로 -

Abstract

When examining legislative policies regarding joint and several obligations in Europe, there are divergent approaches. While countries like France adopt a legislative principle that broadly recognizes the absolute effect of grounds occurring to one debtor among joint debtors by collectively forming joint obligations, countries like Germany acknowledge the absolute effect more restrictively by forming simple joint obligations. From such legislative policies, France has derived a concept distinct from joint and several obligation, termed ‘obligation in solidum’. Conversely, Germany has derived a concept termed ‘untrue joint and several obligation’, which restricts the absolute effect more narrowly compared to simple joint obligation. In our civil law system, both judicial precedents and scholarly consensus generally recognize the concept of untrue joint and several obligation. However, there remains insufficient discussion regarding the precise definition of untrue joint and several obligation, as well as the grounds for acknowledging this concept. Furthermore, while judicial precedents and scholarly consensus acknowledge multiple types of liabilities as untrue joint and several obligations, the discussion on whether these types are truly consistent with untrue joint and several obligation, which does not recognize the subrogation relationship and only acknowledge relative effects, is still insufficient. Interpreted as one type of untrue joint and several obligation, joint tort under Article 760 generally assumes that the actors have joint and several obligations. This understanding itself historically diverges from the concept of untrue joint and several obligation in Germany, favorable to simple joint obligation. Moreover, the practical allowance of subrogation rights exacerbates the theoretical contradiction to the original effect of untrue joint and several obligation, necessitating urgent discussion for resolution. In light of this acknowledgment of the issue, this paper examines the necessity of the concept of untrue joint and several obligation and seeks resolutions by revising provisions regarding the absolute effect arising from one debtor among joint debtors.