연대채무자 중 1인에게 발생한 사유 및 연대채무자 사이의 구상관계 - 민법 개정 필요성에 관한 검토를 중심으로 -

Abstract

The provisions regarding solidary obligations in Korean Civil Law have remained unchanged since the enactment of the Korean Civil Law. There have been criticisms raised at several points regarding the effects of facts arising between one solidary debtor and a creditor on the other solidary debtors, and solidary debtors' internal relationships, raising a need for a revision of Korean Civil Law. Among the effects of a reason arising between one solidary debtor and a creditor, criticisms have mainly been raised in relation to set-off, release, prescription, and novation. The effect of these should be determined by weighing the functional aspect of solidary obligation as personal security and the swift resolution of the internal relationships through the prevention of circular recourse claims. When reviewing the civil law and the legal systems of various other countries comprehensively, it seems desirable to maintain the current civil law provisions for set-off and prescription, to specify the effects of release and to change the effect of prescription to a relative effect. Next, concerning the internal effects (internal relationships), the issue of whether to recognize the right of recourse even in cases where the solidary debtor's payment does not exceed his share has been discussed. Many precedents and opinions suggest that the solidary debtor can exercise the right of recourse in proportion to their share even if the payment amount does not exceed it. It may be worth considering clarifying this aspect in the civil law provisions. Finally, current civil law stipulates that if the creditor agrees with a solidary debtor that the he is liable to pay only his share, and one of the debtors who bears contributory obligation becomes insolvent, the creditor shall bear the burden. Although there have been some legislative criticisms against this, maintaining the current stance of the civil law seems justified when considering the substantive intention of the parties involved.