제3자를 위한 계약(민법 제539조, 제541조)에 대한 개정론

Abstract

As for Article 539, Clause 1 and Clause 2 collide each other. Clause 1 is ruled in the direct acquisition theory (Akkreszentheorie) and Clause 2 is ruled in the agreement theory(Akzeptationstheorie), and collides each other. As a contract in favour of third person as for article 539, the judicial precedent and the majority theory make much of Clause 2 and interpret it by Akzeptationstheorie. Therefore the third person acquire the right to demand to obligor by the declaration of the intention to accept the benefit. But such an interpretation cannot make Article 541 and is not harmony with the article. It was concluded for Akkreszentheorie about the contract in favour of third person in modern civil law, and almost all countries except Japan and Korea adopt Akkreszentheorie. The Civil law Article 539 must be revised in Akkreszentheorie at such a point. According to Article 541 the right of the third person could be changed and abolished before the above declaration of the intention by the third person. In the case which obligee dies before the right of the third person is established, an heir could change or abolish the right of the third person according to Article 541. Such a result is not reasonable and admires the purpose of the obligee. In addition, the result such as the above mentioned is more serious when the person concerned makes a special clause which obligor perform a shift after death of obligee. In Germany and Italy civil law the extra article which obligor perform a shift after death of obligee is stipulated. As for the such an extra case, KGB is not stipulated. So the article 541 must be revised at such a point. Conclusively as for Article 539 and Article 541, it must be revised as followings;Article 539 deletes Clause 2 conclusively and must establish only Clause 1. Therefore the third person acquire the right of the demand to perform to obligor directly without of the declaration of the accept. And as for article 541, the rights of change and abolish of the obligee is extinction by the death of obligee, so the heir of obligee could not change or abolish the right of the third person.