통일 민법에 있어서 북한 채권총칙의 수용 및 그 한계

Abstract

This paper researches elements that can be accepted in the Unified Civil Code and the limits of acceptance among the contents of the General Provisions of Claims of the current North Korean Civil Law (Part 3, Chapter 1), and other elements related to the General Provisions of Claims that need to be accepted in the Unified Civil Law. Among the general provisions of claims of the North Korean Civil Law, the provisions of claims and liabilities are used in easy terms, the quality of the subject matter of the type claim is in principle based on the best product, and the prohibition on interest infringement is specified when exercising the claim of joint creditors, and including the general provisions of the contract in the general provisions of the bond are worth considering for acceptance in the Unified Civil Law. However, given that the principle of respect for private property rights and private autonomy, which are judicial reflections of the basic liberal democratic order of our Constitution (Article 4), are core values that cannot be compromised, elements that run counter to these cannot be accepted in the Unified Civil Law. In other words, the principle of socialist ownership of the means of production, the principle of planned property transactions, the principle of collectivism, and the principle of comradely cooperation and assistance are taken as the basic principles of the claims law, and administrative documents are used as the cause of claims, making change and disposal of planning tasks the cause of extinguishment of claims, transferring illegal causes of benefits to the national treasury, allowing civil liability, administrative responsibility, and criminal liability to coexist are absolutely unacceptable in the Unified Civil Law. The general provisions of claims of North Korea’s civil law are very few compared to those of our civil law. Therefore, in order to more specifically regulate the status of individuals and ensure legal stability of creditor relationships, a transitional provision must be established in the Unified Civil Code to apply the provisions of the General Provisions of Claims (Part 3, Chapter 1) of the Korean Civil Code to North Korea after unification. In North Korea’s credit relationship, interest claims are prohibited between citizens, mental damage (alimony) is not recognized as liability for default, and the interests of the state and society are prioritized over individual interests in relation to the establishment of civil liability. Since giving priority to political factors intervenes in civil relations, these regulations should be abolished after unification. In addition, North Korea’s General Regulations on Creditors give priority to or limit the status of corporations over individual in creditor relationships between multiple parties, bond transfer and debt assumption, and bond extinction, which violates the principle of equality of corporate personality, so this regulation should be abolished after unification.