‘제3자의 변제’에 관한 효용성 분석 및 비교법적 고찰

Abstract

This article has focused on the subject for the performance by the third party based on the comparative studies of Asian countries. In most of countries, a contract to do something, may not be performed by a third party if this is contrary to the wishes of the creditor who has an interest in the act being committed by the debtor himself. Otherwise, an obligation may be performed by a third party as well as by the obligor. If the purpose of the obligation cannot be achieved by the performance of a third party, the third party may not perform the obligation unless the obligee consents. The obligor and the obligee may agree not to allow performance by a third party. A person who has procured a discharge through his own performance or other expenditure and thereby obtains the right to demand indemnification from the obligor may exercise via subrogation the claim held by the obligee and all other rights associated therewith. A contract can be fulfilled by any one individual who has an interest therein, such as a co-debtor or a guarantor. A contract may also be fulfilled by a third party who does not have any interest in it, provided that the third party acts on behalf of and for the purpose of releasing the debtor, or, if he acts on his own behalf, he shall not assume the rights of the creditor. When a promisee accepts performance of the promise from a third person, he cannot afterwards enforce it against the promisor. Lastly, I have compared the Principle of Asian Contract Law with Draft Common Frame of Reference. Taiwan Civil Code and Malaysian Contract Law are similar in this subject, which means that they seem similar to common law. Cambodian and Vietnamese Civil Code are similar to Japanese Civil Code. Especially, Korean Civil Code is very similar to Japanese Civil Code. I would like to encourage for the academy of Korean contract law to easily allow the third party to perform instead of the obligor. In fact, Korean Civil Code is a little strict against the third party to effectively perform the contract because of some requirements. Then, Korean Civil Code and contract law are the most likely to allow the third party, who performs the contract without legal or actual interest, to obtain the right for redemption against the obligor. I believe that it is very different from common law and DCFR. Especially, common law has not allowed the third party to obtain the right for redemption unless he or she has legal interest to perform. Neutrally, I have economically analyzed which standard is more useful between the case to allow it or not. I hope that this analysis will be helpful for works in the Amendment of Korean Civil Code.