대상청구권의 해석상 인정에 따른 문제점 및 그 입법의 필요성

Abstract

The claim right of vicarious compensation is the right of a creditor claiming to a debtor to assign the gain acquired by the debtor, which had been caused by the default in payment or other equivalent causes in the creditor-debtor relation between the parties. However, there is no provision on the claim right of vicarious compensation in our Civil Code. Nevertheless, the majority literature are acknowledging the claim right of vicarious compensation for a creditor based on the “principle of equitability” or “economic fairness”. The precedents also acknowledge the claim right of vicarious compensation in many cases on the reason that there is no reason to deny the right in its interpretation. However, the acknowledgement of claim right of vicarious compensation by interpretation, which does not have proper provision in our Civil Code, makes the balanced interpretation difficult and brings about substantial conflicts with the subjects in our Civil Code such as damage compensation, unjust gain, infringe on third party receivable, office management (“negotiorum gestio”) and contract termination right. All theories that serve as the bases for the acknowledgement of claim right of vicarious compensation have issues of their own. The reason is that the claim right of vicarious compensation in the German Civil Code had been accepted in Korea without criticism even though it could have been sufficiently resolved by existing provisions in our Civil Code. The biggest difficulty is that it is impossible to have a balanced interpretation with Article 537 of Civil Code. When contract parties get into impossibility of performance ignoring the legal effect which had been the purpose of contract performance, the unilateral possession of gain by vicarious compensation by the creditor is against the “principle of equitability”, which is the purpose of the claim right of vicarious compensation. Especially, it is very unfair if a creditor would unilaterally extend the creditor-debtor relation in order to possess the gain by vicarious compensation when the impossibility of performance had been occurred without fault of any party in a bilateral contract. A contract meets the purposes of the contract parties in a fair manner when the initiation, continuation and termination of the contract would be done by agreement between the contract parties. It is not a fair realization of creditor-debtor relation if a creditor would unilaterally extend the creditor-debtor relation and occupy advantageous position. Therefore, it is suggested to resolve the claim right of vicarious compensation by faithfully applying the existing provisions in our Civil Code such as the compensatory damage claim, the unjust gain and risk taking; rather than trying to forcefully adjust the legal relation between the parties by unnaturally acknowledging the claim right of vicarious compensation by interpretation without a solid provision in the Civil Code. If the claim right of vicarious compensation is required to be acknowledged, it is recommended to resolve it by legislation by providing with a legal provision so that the legal confusion would be avoided and the fairness would be secured in the creditor-debtor relation between the parties.