Individual relative effect of provisional seizure and statutory superficial right under customary law

Abstract

According to the facts of the South Korea’s Supreme Court ruling on January 24, 2003, 2000da22850, some of the receivables for the sale of apartments were transferred first. According to the transfer of the bonds, the transferee who is obligated to pay the sale price paid the money to the transferee of the bond. However, after that, the previous sale contract between the debtor and the seller was canceled. At this time, there was a problem as to whom the seller should seek the return of the sale price paid to. In the judgment of the subject matter, it was determined that with respect to the amount of money paid to the assignee after the transfer of the claim, the assignee should return the amount paid as an obligation to restore the original state. As described above, there is a dispute over the person obligated to return when the contract that caused the claim is canceled after the transfer of the claim is made, but some views argue that the nature of the duty to return is the duty to return unreasonable profits. In this paper, I studied the disputes of these theories and the validity of the arguments, whether the person obligated to return must be recognized in the singular, and whether the effect of the cancellation is an unfair advantage. My conclusion in this paper is ①Contract cancellation has no retroactive effect, and the contract becomes invalid for the future. For unfulfilled transfer claims, the claim can be dismissed by using the claim for cancellation as an offensive or defensive method in accordance with South Korea Civil Law Article 451 (2). It creates the duty of recovery (the right to claim restoration, which is a statutory claim that is distinct from unreasonable gains, considering all costs, negligence, accessories, and damages). ② The transferee of the claim who has been transferred from the debtor after receiving the claim under the contract prior to cancellation is not a party to the contract and therefore does not bear the obligation to restore it to its original state. ③ As the satisfaction of the claim of the assignee of the claim, which has been paid from the debtor prior to cancellation, is valid in principle, there is no need to examine whether it falls under the third party in Article 548 (1), and in principle, it is not an unfair advantage. ④ However, exceptionally, if the subjective requirements to the degree of recognition of the probability of cancellation and the intention to injure other creditors are recognized, the obligation to return unreasonable profits, which is a different litigation from the obligation to restore to the original state, is borne, and the contracting party s obligation to restore to its original state and can be summarized as sluggish solidarity debtors relationship .