부진정연대채무에서 다액채무자의 일부변제의 효력 - 대법원 2018. 3. 22. 선고 2012다74236 전원합의체 판결의 논거에 대한 비판 -

Abstract

Among the quasi joint and several obligations, there may be cases where the amount of the debt differs. In this case, if the large-amount-obligor pays only part of it, it is a question whether the large-amount-obligor's sole burden is extinguished first(so called outside extinction theory), or the amount of the small-amount-obligor’s debt is also extinguished corresponding to the ratio of fault(so called fault ratio theory). In this regard, the past decision of Supreme Court has taken two different positions: the case of choosing the outside extinction theory and the case of choosing the fault ratio theory. However, the Supreme Court en banc decision in 2018 abolished the fault ratio theory and unified its position with the outside extinction theory. The Supreme Court's grounds for this are as follows. First, the fault ratio theory has a problem in that the amount the creditor receives depends on the order of repayment. Second, the fault ratio theory weakens the position of creditors by applying the comparative negligence twice. Third, the fault ratio theory is contrary to the payer's will. Fourth, the fault ratio theory is different from the existing judgment on partial guarantee and joint debt. Fifth, the criterion for distinguishing between the case of applying the fault ratio theory and the case of applying the outside extinction theory is unclear, which impairs legal stability. But, the first and second arguments are only valid under the presumption that the small-amount-obligor must bear the risk of default of the large-amount-obligor. And this premise is only valid when the meaning of comparative negligence is limited to the calculation of the amount of damage. However, there is no reason to limit the comparative negligence to this. Rather, according to the basic principles of the Civil Law, it is reasonable to consider comparative negligence in the distribution of the risk of default by large-amount-obligor. And the third argument is one that takes into account the interests of the large-amount-obligor who committed deliberate offenses. The protection value of the large-amount-obligor is lower than that of the small-amount-obligor. Therefore it is not convincing to consider his/her will. In addition, in cases where the amount of debt differs due to comparative negligence in quasi joint and several obligations, it is not similar to the case of partial guarantees or joint debt, so the fourth argument that rejects the fault ratio theory is also not convincing. However, the fact that the previous Supreme Court precedents were divided into two different theory, and that the criteria for discrimination were unclear, there was a problem in terms of legal stability and practicality of jurisprudence. In this respect, the subject judgment is significant in that it has increased legal stability. However, if the fault ratio theory had the consequential validity, it should not be discarded, but the criteria for distinction should be clarified. The fault ratio theory consistently applies the fair share of damages in the comparative negligence to the risk of default of the large-amount-obligor, so I think it corresponds to the notion of justice. Therefore, it is reasonable to maintain this rule. And for this, the criteria for distinguishing between fault ratio theory and outside extinction theory must be clear. I think that, when the amount of debt becomes differ in the quasi joint and several obligations due to comparative negligence, the fault ratio theory should be adopted in principle. However, in the case of partial repayment by a large-amount-obligor, to whom the small-amount-obligor cannot exercise the right of reimbursement, the outside extinction theory should be applied. This would be appropriate in terms of consequential validity and legal stability.