병존적 채무인수와 채권양도의 경합

Abstract

When there is competition between the Assumption of debt and the assignment of claim, it is possible to apply the Assumption of debt to the creditor or any third party together with the assignment of claim. Specifically speaking, the following cases can be applied; (1) When the grantee of bonds fails to acquire the resisting conditions even after the agreement for the assignment of claim is concluded and the guarantor of debts makes a payment prior to its due date after the agreement for the Cumulative Assumption of debt is concluded (the agreement for the assignment of claim - the agreement for the Assumption of debt - payment prior to the due date - preparation of resisting conditions), (2) When the payment is made prior to the due date without the preparation of resisting conditions for the assignment of claim even after the agreement for the assignment of claim is concluded after the conclusion of the agreement for the Assumption of debt (the agreement for the Assumption of debt - the agreement for the assignment of claim - payment prior to the due date - preparation of resisting conditions), (3) When the payment is made by the guarantor of debts prior to the due date even before the assignment of claim due to the agreement for the Assumption of debt (the agreement for the Assumption of debt - payment prior to the due date - the agreement for the assignment of claim - preparation of resisting conditions). In such cases, there is competition between the Assumption of debt and the assignment of claim. According to the current civil laws, the status of the guarantor of debts, who does not have a standardized way of proof, becomes unstable. As a result, it is necessary to protect the guarantor of debts. Therefore, it is thought that the following conditions might be required; (1) The resisting conditions possessed by the guarantor of debts regarding creditors in order to notify creditors of debtors, (2) The resisting conditions for the reversion of debts in terms of the preferential recovery of bonds through the effective argument or setoff for the payment made by the guarantor of debts to creditors in regard to the relationship with any third party, including the grantee of bonds and the execution creditors.