사회주의 민법의 채권양도와 채무인수

Abstract

This paper seeks to examine the Transfer of Claim and Takeover of Obligation in The Socialist Civil Law with the Civil Code of Russia in 1964, Contract Code of China, General Rules of Civil Law of China and the Civil Law of North Korea as a central figure. On the basis of this, it also regards to compare the differences and similarities between mutuality of Socialist Civil Laws and a gap between Civil Law of South Korea and North Korea. According to the data, Transfer of Claim and Takeover of Obligation from Civil Law of North Korea are ideologically succeed to the Civil Code of Russiain 1964 which focused on the practice of subject plan. Meanwhile, law technically, it regulates the upper parts in terms of the one text as following the General Rules of Civil Law of China in 1986. But differently with Civil Code of Russia in 1964 as well as the Civil Lawof North Korea, Contract Code of China regulated in 1999 accepted the legislation to support the market economy. It can be saying that it is the similar legislative behavior with constitution of South Korea. Accordingly, regarding the Debt Payable to Order, Contract Code of China is introducing the factors of capitalism like recognition of Transfer of Claim depended on the endorsement, Restriction on the Assignment of Right of Lease and Sub-Lease, merger or division, Transfer of Claim as well as the Takeover of Obligation. The following figure of Contract Code of China can be seen as the model legislation to Civil Law of North Korea when they proceed marketization hereafter. Besides, it can raise the acceptability of the civil law of the unified Korea as well as the approach of Civil Law of South Korea and North Korea. But, regarding the Transfer of Claim and Takeover of Obligation, Civil Lawof North Korea is remarkably simple concerning with the point that it has no regulation like Requisite for Setting up Assignment of a Nominative Claim of against Obligor, Notice of Assignment and Estoppel, Retroactive Effect of Assumption of Obligation and Assumption of Obligation and Extinguishment of Suretyship or Security. But it also has limitation with regard to acceptance of the civil law of the unified Korea as well as the approach ability of civil law. Because it has character of public law concerning with the fact that it restricts the Transfer of Claim and Takeover of Obligation towards the socialistic corporation and premeditated contract. However, regarding the contract by Transfer of Claim and Takeover of Obligation, Civil Law of North Korea deals with it by a formal act. Hence, it bears inspection to accept this character into the constitution of South Korea in connection with the point that it clarified the legal relation.