대상청구권에 관한 판례의 검토

김준호 연세대학교 법학연구원 2010 法學硏究 Vol.20 No.1

When an obligor who has the burden of the contract performs his obligation, a creditor is supposed to take profits by the completion of the contract by the obligor. However, there is a situation that even though the obligor has been discharged by impossibility of performance he can still be benefitted under the contract. In this situation, the creditor may have the claim rights of vicarious compensation. The claim rights of vicarious compensation mean the creditors’ right of recourse on the profit against the obligors when debtors make profits on vicarious compensation of the object to be fulfilled by the same causes which raised the insolvency. The Korean civil law has no provision on the claim rights of vicarious compensation. Nevertheless, it is proper to acknowledge the claim rights of vicarious compensation under the Korean civil law. However the range of application should be comprehensively considered on a case by case basis,not applied to all cases in the same lights. The Korean case law has recognized the claim rights of vicarious compensation only in an interpretive way on the grounds that in a contract, the compensation should be decided by the parties’ intent, while in a statutory bond, protection of parties’ rights under the law should be a main ground since parties should not be influenced by an unforeseen contingency; objective impossibility. The claim rights of vicarious compensation are also applicable to the Korean Civil Code Section 537; obligor’s risk of loss. Because, even though the creditor is entitled to have the claim rights of vicarious compensation,the circumstances are not going to be unfavorable for the obligor. In this regard, the court correctly concluded, but lacked specific explanation. A possessor’s claim right of record acquired by acquisitive possession should be protected by the law. Thus, when an owner is given the compensation by the impossibility of performance, the possessor should be allowed to have the claim rights of vicarious compensation as a substitute for the right to record. Meanwhile, the claim rights of vicarious compensation do not require the party’s liability. Because, the purpose of vicarious compensation is to give the same affect the original burden of a contract, if the vicarious compensation is deemed to be equal to the original burden of the contract. Therefore, the liability is not necessarily a requirement for a vicarious compensation. In this regards, the court incorrectly ruled to require liabilities for the claim rights of vicarious compensation in the case of acquisitive possession. If a non-performing party and a performing party of a bilateral contract are discharged by the impossibility of performance due to fault with each other, providing compensation to each other would be unnecessary to maintain the original creditor-obligor relationships. Moreover, it is proper that the court denied the claim rights of vicarious compensation when the party who has the claim rights of vicarious compensation willfully changed his burden of contract to vicarious compensation since the possible abuse is concerned. 급부를 불능으로 하는 사유에 기하여 채무자는 채무를 면하면서 그 이익을취득하는 수가 있는데, 채무자가 채무를 이행하였다면 그러한 이익은 채권자에게 귀속될 것이었다는 데 기초하여, 채권자가 채무자에 대하여 그 이익(대상)의이전을 청구할 수 있다는 것이 ‘대상청구권’의 개념이다. 민법은 급부의 불능에관해 여러 규정을 두면서도 이와 관련되는 대상청구권에 관해서는 명문의 규정을 두고 있지는 않지만, 이를 인정하는 것이 타당하다. 다만 그 인정범위는 구체적인 사안에 따라 여러 사정을 종합하여 개별적으로 정할 것이지, 대상청구권에만 중점을 두어 일률적으로 이를 인정할 것은 아니다. 판례는 대상청구권을 해석상 인정할 수 있다고만 할 뿐인데, 그 근거로는, 계약의 경우에는, 그 대상을 본래의 급부에 대신하고자 하는 ‘당사자의 의사’에서 찾아야 하고, 이에 대해 법률의 규정에 의해 채권ㆍ채무가 생기는 법정채권의 경우에는, 목적물의 급부불능이라는 우연한 사정에 따라 권리자가 영향을 받게 해서는안 되므로, ‘(법률로 정한) 권리의 정당한 보호’를 그 근거로 삼아야 한다. 민법 제537조 소정의 ‘채무자 위험부담주의’가 적용되는 경우에도 대상청구권을 인정하는 것이 타당하다. 그 이유는, 첫째 민법 제537조가 채무자에게 대상이 생긴 것을 전제로 한 규정은 아닌 점에서, 그 대상이 생긴 경우에까지 동조가 반드시 적용되어야하는 것으로 해석할 수는 없다. 둘째, 부정설은 그 논거로서, 대상청구권을 인정하게 되면 채권자에게만 유리한 것이 되어 계약 당사자모두의 이익의 형평을 깨뜨려 문제가 있다고 하지만, 채권자에게 대상청구권을인정하고 그 행사 여부를 그에게 맡기더라도 채무자가 종전보다 불리하게 되는것은 아닐뿐더러, 그것이 채권자에게만 유리하여 계약 당사자 모두의 이익의형평을 깨뜨리는 것이라고 보기도 어렵다. 이 점에서 민법 제537조가 적용되는경우에도 판례가 대상청구권을 인정한 것은, 그 구체적인 설명이 없는 점에서 는 문제가 있지만, 결론에서는 타당하다고 본다. 취득시효 완성으로 등기청구권을 갖게 된 점유자의 정당한 권리는 보호받아야 한다. 따라서 그 불능으로 인해 소유자가 대상을 얻은 경우에는 점유자가본래의 등기청구권에 대신하여 그 대상의 지급을 청구할 수 있는 대상청구권을인정하는 것이 타당하다. 한편 대상청구권은 귀책사유를 요건으로 하는 것이아니고 본래의 급부와의 동일성이 인정되는 이상 본래의 급부와 같은 것으로보자는 데 그 취지가 있는 것이므로, 여기에 귀책사유가 요건이 되어야 할 이유는 없다. 이 점에서 판례가 취득시효의 경우에 대상청구권의 요건으로서 귀책사유를 부가하는 것은 타당하지 않다. 쌍무계약에서 당사자 각자의 귀책사유로 각자의 채무가 이행불능이 된 경우,양자가 서로 대상으로 주면서까지 본래의 채권관계를 유지할 필요는 없고, 또대상청구권을 갖게 되는 자가 자기의 급부의무를 자의로 대상으로 바꾼 경우에까지 이를 인정하는 것은 대상청구권의 남용의 측면에서도 문제가 있는 점에서,대상청구권을 부정한 판례는 타당하다.

대상청구권의 해석상 인정에 따른 문제점 및 그 입법의 필요성

조광훈 서울시립대학교 서울시립대학교 법학연구소 2011 서울법학 Vol.19 No.2

The claim right of vicarious compensation is the right of a creditor claiming to a debtor to assign the gain acquired by the debtor, which had been caused by the default in payment or other equivalent causes in the creditor-debtor relation between the parties. However, there is no provision on the claim right of vicarious compensation in our Civil Code. Nevertheless, the majority literature are acknowledging the claim right of vicarious compensation for a creditor based on the “principle of equitability” or “economic fairness”. The precedents also acknowledge the claim right of vicarious compensation in many cases on the reason that there is no reason to deny the right in its interpretation. However, the acknowledgement of claim right of vicarious compensation by interpretation, which does not have proper provision in our Civil Code, makes the balanced interpretation difficult and brings about substantial conflicts with the subjects in our Civil Code such as damage compensation, unjust gain, infringe on third party receivable, office management (“negotiorum gestio”) and contract termination right. All theories that serve as the bases for the acknowledgement of claim right of vicarious compensation have issues of their own. The reason is that the claim right of vicarious compensation in the German Civil Code had been accepted in Korea without criticism even though it could have been sufficiently resolved by existing provisions in our Civil Code. The biggest difficulty is that it is impossible to have a balanced interpretation with Article 537 of Civil Code. When contract parties get into impossibility of performance ignoring the legal effect which had been the purpose of contract performance, the unilateral possession of gain by vicarious compensation by the creditor is against the “principle of equitability”, which is the purpose of the claim right of vicarious compensation. Especially, it is very unfair if a creditor would unilaterally extend the creditor-debtor relation in order to possess the gain by vicarious compensation when the impossibility of performance had been occurred without fault of any party in a bilateral contract. A contract meets the purposes of the contract parties in a fair manner when the initiation, continuation and termination of the contract would be done by agreement between the contract parties. It is not a fair realization of creditor-debtor relation if a creditor would unilaterally extend the creditor-debtor relation and occupy advantageous position. Therefore, it is suggested to resolve the claim right of vicarious compensation by faithfully applying the existing provisions in our Civil Code such as the compensatory damage claim, the unjust gain and risk taking; rather than trying to forcefully adjust the legal relation between the parties by unnaturally acknowledging the claim right of vicarious compensation by interpretation without a solid provision in the Civil Code. If the claim right of vicarious compensation is required to be acknowledged, it is recommended to resolve it by legislation by providing with a legal provision so that the legal confusion would be avoided and the fairness would be secured in the creditor-debtor relation between the parties. 당사자간의 채권관계에서 급부의 이행불능과 동일한 원인에 의하여 발생한 이익을 채무자가 취득한 경우, 채권자가 채무자에 대하여 자신에게 양도할 것을 청구할 수 있는 권리가 ‘대상청구권’이다. 그러나 우리 민법에는 명문규정을 두고 있지 않다. 그럼에도 불구하고 다수설은 ‘공평의 이념’ 또는 ‘경제적 형평성’ 에 의하여 채권자에게 대상청구권을 인정하고 있고 판례도 해석상 이를 부정할 이유가 없다는 것을 서두로 많은 사례에서 인정하고 있다. 그러나 대상청구권에 대하여 명문의 근거가 없는 우리 민법상 대상청구권을 해석상 인정하면 손해배상, 부당이득, 제3자에 의한 채권침해, 사무관리, 계약해제권 등의 기존의 민법 제도와 조화로운 해석을 어렵게 만들고 적지 않은 상충관계도 발생시킨다. 대상청구권을 인정하는 근거로 드는 학설들은 저마다 많은 문제점을 내포하고 있는데, 이는 기존의 민법규정으로도 충분히 해결 가능한 것이었음에도 독일 민법상 대상청구권을 비판 없이 해석상으로 받아들인 결과이다. 가장 큰 난점은 민법 제537조와 조화로운 해석이 불가능하다는 점이다. 계약의 당사자들이 원래 계약의 이행으로 달성하고자 한 법률효과를 무시하고 이행불능에 빠졌을 때 대상의 이익을 채권자에게 귀속시키고자 합의한 바가 없음에도 채권자에게 일방적으로 대상의 이익을 귀속시키는 것은 오히려 대상청구권이 지향하는 공평의 이념에 반한다. 특히, 쌍무계약에서 쌍방의 아무런 책임 없이 이행불능이 발생한 경우에도 채권자가 일방적으로 채권관계를 연장시켜 대상의 이익을 차지하는 것은 매우 불공평한 결과를 가져온다. 무릇 계약은 계약의 당사자가 의사의 합치로 발생․존속․종료가 이루어질 때 계약의 목적이 공평하고 당사자의 의사에 부합하는 것이지 채권자가 일방적으로 채권관계를 연장시켜 자신이 유리한 지위를 점하는 것이 공정한 채권관계를 실현하는 것이라고 할 수 없다. 따라서 대상청구권을 명문의 근거 없이 무리하게 해석상 인정하여 당사자의 법률관계를 강제로 조정하려 하지 말고 기존에 우리 민법의 이행불능의 효과로 발생하는 전보배상제도나 부당이득제도, 위험부담 등을 충실히 적용하여 해결하는 것이 바람직하다. 굳이 대상청구권을 인정하고자 한다면, 명문의 규정을 두어 입법으로 해결하는 것이 법적 혼란을 방지하고 진정으로 당사자의 채권관계에 공평을 기하는 길이다.

국가의 손실보상법에 관한 비교법적 고찰 - 독일과 한국의 비교를 중심으로 -

김연진 유럽헌법학회 2022 유럽헌법연구 Vol.- No.39

The loss compensation acts in Germany and Korea are similar in basic respects, but different parts are found in specific applications. Germany has applied the ‘expropriation-equal infringement(enteignungsgleicher Eingriff)’ to compensate for the void in legal principles for illegal and irresponsible infringement, and the ‘expropriable infringement(enteignender Eingriff)’ legal principles have been applied to property rights restrictions that appear as an atypical side effect of legitimate administrative action. Germany has elaborately developed the loss compensation act through the victim compensation claim(Aufopferungsanspruch), advanced since the 18th century in the philosophy of natural law, the right to claim the elimination of results, the right to claim damages based on the administrative legal claim-obligation relationships, the right to claim the compensation based on the management of administrative affairs, and the right to claim the reimbursement under public law, in addition. Unlike Germany, Korea does not recognize ‘expropriation-equal infringement’, ‘expropriable infringement’, and other claims, and unlike Article 14 (3) of the Basic Law for the Federal Republic of Germany, which stipulates ‘expropriation’, Article 23 (3) of the Korean Constitution additionally stipulates the ‘use or restriction of property rights by public purpose. It could not be applied indiscriminately as the legal principles such as expropriation-equal infringements, expropriable infringements, and the victim compensation claim developed in Germany are not perfect theories, however. It is not necessary to accept these claims as the right to claim damages based on the administrative legal claim-obligation relationships and the right to claim the compensation based on the management of administrative affairs could be resolved through the application of civil law regulations, and the right to claim the reimbursement under public law could be settled by the principle of general unfair profits, in addition. The recent side effects of the COVID-19 vaccine are an opportunity to develop discussions on vaccination damage compensation as the compensation by the State. Germany has resolved the damage compensation for vaccination through the right to claim sacrifice compensation. Korea does not recognize the right to claim sacrifice compensation, but seeks to compensate for vaccination damage through Article 71 of the 「Act on the Prevention and Management of Infectious Diseases(abbreviation: Infectious Disease Prevention Act)」. Since the scope of vaccination damage compensation is narrow, the cause-and-effect relationship should be alleviated in the future, and it is required to prepare specific vaccination damage compensation standards and add compensation methods through pension receipt in the 「Infectious Disease Prevention Act」 and Enforcement Decree of the same Act. 독일과 한국의 손실보상법은 기본적인 점에서 유사하나, 구체적인 적용에 있어서 상이한 부분이 발견된다. 독일은 위법·무책한 침해에 대한 법리의 공백을 보완하기 위해 ‘수용유사적 침해’를 적용시켜 왔으며, 적법한 행정작용의 비정형적 부수적 효과로서 나타나는 재산권 제약행위에 대해서 ‘수용적 침해’ 법리를 각각 적용시켰다. 이외에도 독일은 18세기부터 자연법적 사상에서 발전된 ‘희생보상청구권’, 결과제거청구권, 행정법적 채권관계에 의한 손해배상청구권, 사무관리에 의한 청구권, 공법상의 상환청구권 등을 통해 손실보상법을 정교하게 발달시켜왔다. 한국은 독일과 달리 ‘수용유사적 침해’, ‘수용적 침해’ 및 ‘희생보상청구권’ 기타 청구권을 인정하고 있지 않으며, ‘공용수용’을 명시한 독일 기본법 제14조 제3항과 달리 한국 헌법 제23조 제3항에서 ‘공공필요에 의한 재산권의 사용 또는 제한’을 추가적으로 규정하고 있다. 그러나 독일에서 발전된 수용유사적 침해, 수용적 침해 및 희생보상청구권 등 법리가 완전무결한 이론이 아니라 문제점도 존재하므로 이를 무분별하게 적용할 수는 없을 것이다. 또한, 행정법적 채권관계에 의한 손해배상청구권과 사무관리에 의한 청구권은 「민법」 규정의 적용을 통해 해결하고, 공법상의 상환청구권은 일반 부당이득의 원리로 해결하면 되므로 이러한 청구권을 받아들일 필요는 없다. 최근 문제되고 있는 코로나19 백신 부작용은 국가에 의한 보상으로서 예방접종피해보상에 대한 논의를 발전시키는 계기가 되고 있다. 독일은 희생보상청구권을 통하여 예방접종에 대한 피해보상을 해결하여 왔으나, 한국은 희생보상청구권을 인정하지 않는 대신 「감염병의 예방 및 관리에 관한 법률(약칭: 감염병예방법)」 제71조를 통하여 예방접종피해보상을 도모하고 있다. 그러나 예방접종피해보상을 받을 수 있는 범위가 협소하므로 향후 인과관계 입증을 완화시켜야 하며, 「감염병예방법」 및 동법 시행령에 구체적인 예방접종피해보상 기준 마련 및 연금수령을 통한 보상방식 추가가 요구된다.

대상청구권의 해석상 인정에 따른 문제점의 검토

조광훈 ( Gwang Hoon Cho ) 연세대학교 법학연구원 2011 法學硏究 Vol.21 No.4

The claim right of vicarious compensation is the right of a creditor claiming to a debtor to assign the gain acquired by the debtor, which had been caused by the default in payment or other equivalent causes in the creditor-debtor relation between the parties. However, there is no provision on the claim right of vicarious compensation in our Civil Code. Nevertheless, the majority literature are acknowledging the claim right of vicarious compensation for a creditor based on the “principle of equitability” or “economic fairness”. The precedents also acknowledge the claim right of vicarious compensation in many cases on the reason that there is no reason to deny the right in its interpretation. However, the acknowledgement of claim right of vicarious compensation by interpretation, which does not have proper provision in our Civil Code, makes the balanced interpretation difficult and brings about substantial conflicts with the subjects in our Civil Code such as damage compensation, unjust gain, infringe on third party receivable, office management (“negotiorum gestio”) and contract termination right. All theories that serve as the bases for the acknowledgement of claim right of vicarious compensation have issues of their own. The reason is that the claim right of vicarious compensation in the German Civil Code had been accepted in Korea without criticism even though it could have been sufficiently resolved by existing provisions in our Civil Code. The biggest difficulty is that it is impossible to have a balanced interpretation with Article 537 of Civil Code. When contract parties get into impossibility of performance ignoring the legal effect which had been the purpose of contract performance, the unilateral possession of gain by vicarious compensation by the creditor is against the “principle of equitability”, which is the purpose of the claim right of vicarious compensation. Especially, it is very unfair if a creditor would unilaterally extend the creditor-debtor relation in order to possess the gain by vicarious compensation when the impossibility of performance had been occurred without fault of any party in a bilateral contract. A contract meets the purposes of the contract parties in a fair manner when the initiation, continuation and termination of the contract would be done by agreement between the contract parties. It is not a fair realization of creditor-debtor relation if a creditor would unilaterally extend the creditor-debtor relation and occupy advantageous position. Therefore, it is suggested to resolve the claim right of vicarious compensation by faithfully applying the existing provisions in our Civil Code such as the compensatory damage claim, the unjust gain and risk taking; rather than trying to forcefully adjust the legal relation between the parties by unnaturally acknowledging the claim right of vicarious compensation by interpretation without a solid provision in the Civil Code. If the claim right of vicarious compensation is required to be acknowledged, it is recommended to resolve it by legislation by providing with a legal provision so that the legal confusion would be avoided and the fairness would be secured in the creditor-debtor relation between the parties.

대상청구권에 관한 판례의 검토

김준호 ( Joon Ho Kim ) 연세대학교 법학연구원 2010 法學硏究 Vol.20 No.1

When an obligor who has the burden of the contract performs his obligation, a creditor is supposed to take profits by the completion of the contract by the obligor. However, there is a situation that even though the obligor has been discharged by impossibility of performance he can still be benefitted under the contract. In this situation, the creditor may have the claim rights of vicarious compensation. The claim rights of vicarious compensation mean the creditors` right of recourse on the profit against the obligors when debtors make profits on vicarious compensation of the object to be fulfilled by the same causes which raised the insolvency. The Korean civil law has no provision on the claim rights of vicarious compensation. Nevertheless, it is proper to acknowledge the claim rights of vicarious compensation under the Korean civil law. However the range of application should be comprehensively considered on a case by case basis, not applied to all cases in the same lights. The Korean case law has recognized the claim rights of vicarious compensation only in an interpretive way on the grounds that in a contract, the compensation should be decided by the parties` intent, while in a statutory bond, protection of parties` rights under the law should be a main ground since parties should not be influenced by an unforeseen contingency; objective impossibility. The claim rights of vicarious compensation are also applicable to the Korean Civil Code Section 537; obligor`s risk of loss. Because, even though the creditor is entitled to have the claim rights of vicarious compensation, the circumstances are not going to be unfavorable for the obligor. In this regard, the court correctly concluded, but lacked specific explanation. A possessor`s claim right of record acquired by acquisitive possession should be protected by the law. Thus, when an owner is given the compensation by the impossibility of performance, the possessor should be allowed to have the claim rights of vicarious compensation as a substitute for the right to record. Meanwhile, the claim rights of vicarious compensation do not require the party`s liability. Because, the purpose of vicarious compensation is to give the same affect the original burden of a contract, if the vicarious compensation is deemed to be equal to the original burden of the contract. Therefore, the liability is not necessarily a requirement for a vicarious compensation. In this regards, the court incorrectly ruled to require liabilities for the claim rights of vicarious compensation in the case of acquisitive possession. If a non-performing party and a performing party of a bilateral contract are discharged by the impossibility of performance due to fault with each other, providing compensation to each other would be unnecessary to maintain the original creditor-obligor relationships. Moreover, it is proper that the court denied the claim rights of vicarious compensation when the party who has the claim rights of vicarious compensation willfully changed his burden of contract to vicarious compensation since the possible abuse is concerned.

대상청구권에 대한 입법론적 소고- 민법개정안을 중심으로 -

정진명 한국민사법학회 2014 民事法學 Vol.68 No.-

A Legislative Study on the Claim Right of Vicarious Compensation- For the Focus on the Revised Draft of Civil Code -Chung, Jin-MyungThere is no provision on the claim right of vicarious compensation inKorean Civil Code. Nevertheless, the majority of literatures and theprecedents are acknowledging the claim right of vicarious compensation fora creditor based on the “principal of equality” or “economy fairness”. Inthe light of comparative law, German Civil Code and French Civil Codeare the provision on the claim right of vicarious compensation, themajority of literatures and the precedents in Japan are acknowledging theclaim right of vicarious compensation, and the committee of revision ofJapan Civil Code are proposing about it, even though there is no provisionon the claim right of vicarious compensation in Japan Civil Code. Also, themajority of literatures and the precedents in Austria and Swiss areacknowledging the claim right of vicarious compensation without theprovision on the claim right of vicarious compensation in their Civil Code. The acknowledgment of the claim right of vicarious compensation byinterpretation brings about many problems, such as damage compensation,unjust gain, risk of loss, rescission of a contract etc. Therefore, thecommittee of revision of our Civil Code are proposed to take foreign civilcodes into account: ① If the debtor is bound to make compensation forthe value of an object or rights to the obligation, because of theimpossibility of performance, the creditor may demand interest on theamount to be paid as compensation. ② If the creditor may demandcompensation for any demage arising from the default, according to the270 민사법학 제 68 호(2014.9)par. 1, the debtor is bound to make compensation for the diminution invalue of an interest, from the time which serves as the basis for theestimate of the value. All of the theories that serve as the basis for the acknowledgment ofthe claim right of vicarious compensation have issues of their own. Themain issue is whether the claim right of vicarious compensation is requiredto be acknowledged. Even if it is acknowledged, such the problems as thelegitimated ground and the recognition range of the acknowledgment, andwhether the excess earnings is bound to make compensation to creatorwill be raised. Therefore, this paper is trying to deal with these issues,which have been arisen by legislation of the claim right of vicariouscompensation, and suggest resolving the legal confusion by providing withlegal provision.

점유취득시효 완성자의 대상청구권

여미숙 사법발전재단 2021 사법 Vol.1 No.55

Although there is no provision on the claim right of vicarious compensation in the Korean Civil Act, the majority theory and precedents understand that it is a general remedy of creditors in case of the impossibility of performance and the money earned from the debtor's sale of real estate is also a vicarious compensation. The Civil Act stipulates that a person who has completed acquisitive prescription by possession shall acquire the ownership by making registration. Precedents state that the acquisitive prescription completed person has the right to claim for registration against the owner at the time of the completion of the acquisitive prescription, but not against the person who acquires the ownership after the completion of the acquisitive prescription. The theory on whether the acquisitive prescription completed person has the claim right of vicarious compensation when the owner is unable to fulfill the obligation to transfer the registration depends on the view on the legal status of the acquisitive prescription completed person and the legal nature of the right to request registration. The fact that Article 245(1) of the Civil Act requires making registration for the acquisitive prescription completed person to acquire the ownership is meaningful in that it can clarify legal relations and promote the safety of transactions because the timing of the change in ownership may be unclear and disputes may arise if the ownership is acquired without making registration only by completing the acquisition prescription for real estate registered in the name of another person. Under the above provision, the acquisitive prescription completed person acquires the status to request the registration against the owner, and the right to claim for registration is referred to as a right to demand claims of creditor. Precedents admit tort liability when the owner disposes of the real estate after the completion of the acquisitive prescription even though he/she knows the fact. The precedents and the theory in support thereof affirm the claim right of vicarious compensation of the acquisitive prescription completed person only when he/she asserted the right or exercised the right to request registration before the owner's inability to perform, which is similar to the requirement for the recognition of tort liability. The disposition of the real estate by the owner who is obligated to transfer registration to the acquisitive prescription completed person results in the impossibility of performance. This is not a problem of tort liability, but liability for default of obligation. It has no justifiable ground to limit the claim right of vicarious compensation of the acquisitive prescription completed person according to the right to claim damages for tort which differs in nature and function. It is not logical to try to adjust the interests by limiting the responsibilities of the owner to a certain range while viewing the right to claim for registration as a right to demand claims of creditor. Even though it is difficult to expect the occupant to exercise the right to request registration immediately after the completion of the acquisitive prescription, requesting this means not recognizing the claim right of vicarious compensation. It has an unfair result that the occupant who was able to acquire the ownership of the real estate cannot obtain the profit on its behalf. In particular, when the real estate is expropriated, the owner does not bear the liability for damages due to the inability to fulfill the registration obligation and obtains unexpected profits, which is contrary to the ideology of fairness. Claim right of vicarious compensation is the return of the profits earned by the debtor in place of performance of obligations and there is no basis to consider that Article 245(1) excludes that the profits go to the creditor. The owner must return the profits obtained from the impossibility of performance to the acquisitive presc... 우리 민법에는 대상청구권에 관한 규정이 없으나 다수의 학설과 판례의 태도와 같이 이행불능의 일반적인 효과로서 대상청구권을 인정하고, 채무자가 목적물을 매도하여 얻은 매매대금에 대하여도 대상청구권을 인정하는 것이 타당하다. 민법은 점유취득시효기간이 만료된 부동산의 점유자는 등기함으로써 소유권을 취득한다고 규정하고 있고, 판례에 따르면 시효완성자는 시효완성 당시의 소유자에 대하여 등기청구권을 가지나 시효완성 후에 새로이 소유권을 취득한 자에 대하여는 시효취득을 주장할 수 없다. 취득시효 완성 후 소유권이 이전되어 소유자가 등기의무를 이행할 수 없게 된 경우 시효완성자의 대상청구권을 인정할 것인지 여부에 관하여는 시효완성자의 법적 지위 및 시효완성자가 소유자에 대하여 가지는 등기청구권의 법적 성질을 어떻게 보느냐에 따라 견해를 달리한다. 민법 제245조 제1항이 점유취득시효로 인한 소유권 취득에 등기를 요건으로 규정하고 있는 것은 타인 명의로 등기된 부동산에 대하여도 점유취득시효를 인정하는 특수한 입법하에서 취득시효 완성으로 등기 없이 소유권을 취득하게 되는 경우 권리변동의 시기가 불분명하여 분쟁을 초래할 수 있으므로 법률관계를 명확히 하고 거래의 안전을 도모할 수 있다는 점에 의미가 있는바, 위 규정에 의할 때 시효완성자는 소유자에 대하여 시효완성으로 인한 등기를 청구할 수 있는 지위를 취득하고 그 등기청구권은 채권적 청구권이라고 할 것이다. 판례는 소유자가 취득시효 완성 후 그 사실을 알고도 부동산을 처분한 경우 불법행위책임을 인정하는데, 시효완성자의 대상청구권에 관한 판례와 이를 지지하는 학설은 시효완성자의 등기청구권을 채권적 청구권이라고 보면서도 시효완성자의 대상청구권에 관하여 위 불법행위 성립기준과 유사하게 시효완성자가 소유자의 이행불능 전에 권리를 주장하거나 등기청구권을 행사한 경우에 한하여 이를 인정한다. 그러나 취득시효 완성 후 소유자가 그 부동산을 처분하는 행위는 채무자인 소유자가 시효완성자에 대하여 부담하고 있는 채무를 스스로 이행불능에 빠뜨리는 것이어서 원칙적으로 불법행위가 아니라 채무불이행 문제가 되며, 일반 대상청구권과 달리 시효완성자의 대상청구권을 본질과 기능이 다른 불법행위로 인한 손해배상청구권에 맞추어 제한하는 것은 정당한 근거가 없으며, 시효완성자의 소유자에 대한 등기청구권을 채권적 청구권으로 보면서 소유자의 책임을 일정 범위로 제한하여 시효완성자와 소유자의 이익을 조정하려는 것은 논리가 일관되지 않는다. 또한 시효완성자가 시효완성 후 바로 등기청구권을 행사할 것을 기대하기 어려움에도 이를 요구하는 것은 사실상 대상청구권을 인정하지 않는 것이 되어 부동산의 소유권을 취득할 수 있었던 시효완성자가 이를 대신하는 이익은 얻을 수 없다는 불공평한 결과를 가져오며, 특히 소유자가 부동산을 처분한 경우가 아닌 부동산이 수용된 경우에는 소유자는 등기의무를 이행할 수 없게 된 데에 따른 손해배상책임도 부담하지 않으면서 예상하지 못한 이익을 얻는 부당한 결과가 생기게 되므로 시효완성자의 대상청구권의 요건을 제한하는 것은 공평의 이념에 반한다. 민법 제245조 제1항에 의하여 성립하는 소유자와 시효완성자 사이의 채권채무관계가 다른 법정채권채무관계와 달리 목적물의 ...

취소채권자의 가액배상청구권은 책임재산이 될 수 있는가

조경임(Cho, Kyung Im) 한국비교사법학회 2019 비교사법 Vol.26 No.1

대법원 2017. 8. 21. 선고 2017마499결정은 취소채권자의 가액배상청구권에 대한 압류 및 전부명령을 허용하고 있다. 민사집행은 채무자에게 귀속된 재산을 그 대상으로 하므로, 가액배상청구권을 취소채권자의 책임재산으로 파악한 것이다. 하지만 우리 민법은 사해행위 취소 및 원상회복의 효과는 모든 채권자의 이익을 위하여 효력이 있다고 정하고 있으며(민법 제407조) 채권자 취소소송을 진행한 채권자의 우선권을 인정하고 있지 않다. 모든 채권자를 위하여 채무자의 일반재산을 확보함으로써 채무자를 집행채무자로 하는 강제집행의 준비절차로서 기능하는 채권자취소 제도의 취지를 고려할 때, 취소채권자가 가액배상청구권을 행사하여 수령한 금원은 모든 채권자를 위한 채무자의 일반재산으로 환원되어야 하지, 취소채권자 개인이 향유할 수는 없다고 보아야 한다. 더욱이 가액배상청구권은 강제 집행할 수 있는 권리로 보기도 곤란하다. 어떠한 권리가 압류할 수 있는 성질을 갖는지에 관하여 우리 판례는 재산적 가치가 있고 독립하여 처분 가능할 것을 요구한다. 취소채권자의 가액배상청구권을 독립하여 처분 가능한 취소채권자의 재산으로 보기 위해서는 이를 채권적 청구권이 아닌 채권으로 인정할 수 있어야 할 것으로 생각되며, 어떠한 권리가 채권이려면 그 속성으로서 이행청구력, 소구력, 집행력 및 급부보유력을 함유하여야 하는데, 취소채권자가 수령한 가액은 채무자에게 귀속되어야 할 몫이지 취소채권자가 이를 사용 수익할 권한이 없다는 점에서, 가액배상청구권은 급부보유력을 함유하는 채권이라고 보기 어렵다고 생각되기 때문이다. 가액배상청구는 원물반환이 불가능할 때 예외적으로 인정되는 원상회복청구의 한 형태이다. 원상회복의 방식이 다르다고 하여 취소채권자의 재산 규모가 달라질 수는 없다. 가액배상청구권은 취소채권자가 채무자에 대하여 보유하는 피보전채권의 실현을 위하여 법이 인정한 대외적 권능이며, 피보전채권의 종된 권리로서, 피보전채권과 분리하여 독립적으로 처분 가능한 재산이라고 볼 수 없다. 따라서 압류나 전부명령의 대상이 될 수 없다고 보는 것이 타당하다. The Supreme Court Judgment 2017Ma499, dated August 21, 2017, permits the seizure and claims transfer command for revocation of creditors’ right to claim monetary compensation. Since civil execution is administered to the property vested in the debtors, the right to claim monetary compensation is deemed the property of revocation creditors. To acknowledge any right as claims, however, it should include the right to demand performance, the right of resource, power of execution, and power of retaining benefits. However, the right to claim monetary compensation does not include the power of retaining benefits, and therefore cannot be deemed as claims nor property of revocation creditors. The Civil Act provides that the revocation and restitution of its original status takes effect for the benefit of all obligees (Article 407 of the Civil Act), and does not acknowledge the priority of the creditors who institute a lawsuit for a creditor’s revocation right. Given the purpose of the creditor’s revocation to secure general property of the debtors for the benefit of all creditors and serve as a preliminary process for compulsory execution by which creditors become execution creditors, it should be deemed that any money received by revocation creditors by exercising the right to claim monetary compensation should be reverted to general property of the debtors and should not be enjoyed by individual revocation creditors. The same conclusion will be reached when examining the essence of the right to claim monetary compensation. Claim for monetary compensation is a type of claims for restitution exceptionally acknowledged when the original cannot be returned. When the method of restitution is different, is it appropriate to assume a different amount of “property” of revocation creditors? Further, the Supreme Court does not allow for the seizure of any right exercised by subrogating creditors or collecting creditors. As revocation creditors’ right to claim monetary compensation shares the same nature of such right, it is not appropriate to distinguish them in consideration of systematic consistency. In sum, the right to claim monetary compensation should include the right of collection and the right to receive performance in addition to the right to demand performance, the right of resource, and power of execution, but does not incldue the power of retaining benefits. As it cannot be acknowledged as property of revocation creditors, therefore it is reasonable to conclude that it is not subject to seizure or claims transfer command.

공정거래법의 사적(私的) 집행제도의 변경 및 그 보완방안 - 2000.5.7.자 및 6.23.자 정부제출안 및 2000년도 정기국회에서 통과예정인 안을 중심으로 -

김차동 ( Cha-dong Kim ) 한국경제법학회 2004 경제법연구 Vol.3 No.-

According to the proposed amendment bill, preliminarily announced by the Korea 亡air Trade Commission ( ‘KFTC’ ) on May 7, 2004, (KFTC revised the presumption clause for the amount of damages, from the proposed amendment bill of May 7, 2004, when submitting the revised proposal on June 23, 2004),one of the essential features of the proposed amendment bill is the dramatic improvement of the damage compensation system, the aim of which is to promote a system of private enforcement. This amendment bill has passed the competent standing committee, that is, the National Policy Committee in its original form as presented, as well as the Legislation and Judiciary Committee on November 30, 2004, and is awaiting the approval of the plenary session which is close at hand. The current system for damage compensation under the Monopoly Regulation and Fair Trade Law ( ‘FTL’ ), which is a separate system from that under Article 750 of the Civil Code, is understood as providing a separate right to compensation, independent from the right to compensation under the Civil Code. This is because the former acknowledges strict liability, the principle that a corrective order should be final and conclusive, and a separate system of statute of limitation which period is shoter than that in the Civil Code, and it has been well established that the two claim rights, the damage compensation right in KFTL and in the Civil Code, are concurrent. However, the proposed amendment bill has induced the fundamental change of characteristics in the damage compensation system under FTL, by converting it into the same right to compensation as that under Article 750 of the Civil Code thus getting out of the current differences of the two rights to make an integrated right, although there has been an amendment which transfers the burden of proof for intentional and negligent conducts, which is different from the general principle of Article 750 of the Civil Code. In the course of this process, the provisions pertaining to the principle that a corrective order should be final and conclusive and the system of shorter period of the statute of limitation, as well as strict liability have all been removed. In addition, the system of the determination of damage amount awarded at the court’s discretion is to be newly established under the proposed amendment bill. This shows the legislative intention to promote private enforcement by the increasing of antitrust suits, thus extending the court’s discretionary power with respect to the acknowledgement of damage amount, as many have pointed out that the reason why there has only been a few antitrust suits claiming damages under the FTL, lies in the fact there have been many instances where it was impossible to meet the strict burden of proof required by the existing case law, regarding the calculation of damages. I, as a member of the TF Team for Study of System for the Promotion of Private Actions, organized under the initiative of the KFTC around 2002, have participated in a study for promotion of private antitrust suits under the FTL, such as improvement of the compensation system and introduction of claim for injunction, for a period of one year. With the knowledge gained from such activities, I would like to add some comments which may be helpful, regarding how the proposed amendment bill at hand will change the antitrust damage compensation, and whether such changes will fit the legislative intention to promote private actions, and thus provide an introduction to the many discussions interpretation thereof, which will no doubt arise during the process of execution of the amendments. Various proposals for revision to the amendment bill have been presented in the course of deliberation of the foregoing proposed amendment. Among them, the proposal by National Assembly member Seung-min Yu includes a clause concerning claims for injunction. There has been a doctrinal dispute concerning whether, even under the current system where no explicit provisions allow for injunction claims, it would be possible to claim for an injunction against conduct which is in violation of the FTL. The prevailing view, under Japanese influence, is that such claim is not allowable. Cases that acknowledge such claims coexist with those repudiating it in first instance cases, without any precedent at the level of the Supreme Court in this respect. The foregoing proposed revision to the amendment bill submitted by Mr. Yu, is a very desirable attempt which meets the current necessity of avoiding the uncertainty of these theories and precedents, while at the same time taking into account the need for the proper protection of the victims of FTL offenses. Nevertheless, because this proposed revision consists a single clause, it has resulted in an inadequate provision lacking in sufficient review concerning the appropriate procedures and supplementary provisions pursuant to the introduction of an injunction claim. Thus his proposal has failed in achieving its genuine intention, and is very unlikely to be legislated. Having reviewed the proposed amendment bill, it seems that as a result of being overly conscious of the criticism directed at the principle that a corrective order should be final and conclusive, before a damage claim by FTL is filing, it is attempting a fundamental reform by integrating the compensation system for antitrust damages under the FTL, which has so far been a separate claim, into the claim for compensation under Article 750 of the Civil Code, with the proviso of the acknowledgment of the transfer of burden of proof. Of course, in circumstances where one cannot but rely on Article 750 of the Civil Code to make a claim for compensation of antitrust damages, the proposed amendment bill is not without positive aspects that contribute to the promotion of private antitrust suits, through the transfer of the burden of proof. However, the current compensation system under the FTL has some advantages such as strict liability, acknowledgment of de facto power to presume offensive acts as illegal which are accused by the conclusive corrective orders, and a longer short-term statute of limitation, unlike that of Article 750 of the Civil Code, and thus is able to protect the victims more effectively than that of Article 750 of the Civil Code. It is regrettable that the original amendment prepared by the FTC, that is, the proposal of taking down the ‘final and conclusive corrective measures’ to the completion of the decision process at the level of the FTC, has been handed down during the negotiations among Ministries, in order to resolve the current problem that one may not claim for antitrust damages until the final judgment of the Supreme Court, which has been the biggest target for criticism. Given that the chief reason why the damage compensation system has not been actively in use lies in the difficulty of proving the amount of damages, the newly introduced system acknowledging the amount of damages is epochal event. It is the most prominent one among the amendments to the private action system. From the perspective that it is difficult to abstractly regulate diverse methods of estimation for the amount of damages, the amendment at hand places quite a large portion of it in the court’s discretion, that is the weight of evidence is to be determined at the court’s discretion, through the legal procedures. Thus, such matter has been left behind to be developed through the accumulation of judicial precedents. In the meantime, the amendment regarding injunction claims, despite the urgent necessity of its introduction, is required to be modified and supplemented, as it is too simple to provide details and still has many problems. In conclusion, in the case of the U.S., as the private enforcement sector, which enforces the fair trade law through claims for compensation and injunction, has been in active use, the private antitrust enforcement cases reportedly accounted for more than 90% of all enforcement cases. As such, I hope that our private enforcement system will also be activated through improvement so that market competition may thrive in our society.

식민지책임판결과 한일협정체제의 국제법적 검토

도시환 ( Doh See-hwan ) 한국외국어대학교 법학연구소 2014 외법논집 Vol.38 No.1

On August 30, 2011, the Constitutional Court of Korea made a decision on the constitutional petition filed by Korean “comfort women” for the Japanese military and Korean survivors of nuclear bombing in during World War II. The Court held that the Korean government’s non-performance of its obligation to work proactively on diplomatic negotiation or arbitration under Article 3 of the 1965 Treaty on Basic Relations between Japan and the Republic of Korea (“Korea-Japan Basic Relations Treaty”) was unconstitutional. On May 24, 2012, the Supreme Court of Korea overturned the original ruling that recognized the effect of a Japanese court decision running against the core values of the Korean Constitution (i.e. forcible mobilization of Korean men and women during the colonial period viewed as a lawful act). These were historic decisions clearly reiterating that the victims’ rights to compensation―for illegalities against humanity involving the Japanese state power and other unlawful acts associated directly with its colonial rule―were not part of what was agreed on under the Basic Relations Treaty. In this paper, we discuss the limitations of and problems with lawsuits for “postwar compensation” filed in Japan, including the multiple “obstacles” of Japan’s failure to acknowledge the truth, the amount of time passed since those atrocities were committed, the lack of response or solution from the state, and political restraints. We then examine the 2010 Joint Statement from Korean and Japanese intellectuals who declared the 1910 Korea-Japan Annexation Treaty “already null and void,” followed by the ideological shift of the international community from nationalistic philosophy to human rights-centric thinking, and the 2001 Durban Declaration and Programme of Action which proclaimed cleansing the legacy of colonialism to be a historic mission. These rulings on Japan’s “colonial responsibility” have been denounced by the Japanese government, businesses and media as “politicized,” claiming that such responsibility was already fulfilled once and for all by the Korea-Japan Basic Relations Treaty. More recently, a lengthy register of colonial victims was found in the Korean Embassy to Japan. With this respect, Ihara Junichi, director general of the Asian and Oceanian Affairs Bureau at Japan’s Foreign Ministry, claimed the claims of the United States and other Allied powers was resolved with the 1951 San Francisco Peace Treaty; as for Korea which it did not fight a war against, he asserted that the Basic Relations Treaty, which was allegedly made to handle issues with the country’s “colonial rule,” put an end to its colonial responsibility. The Korean court decisions call for Japan’s compensation for its colonial injustices, or “illegalities against humanity involving the Japanese state power and other unlawful acts associated directly with its colonial rule,” while the Japanese government argues, “The Korea-Japan Basic Relations Treaty, signed as a separate postwar agreement on Japanese colonial rule, waived all the relevant rights to compensation.” In other words, the Japanese government claims that Korean courts made unfair and politicized decisions going against what was agreed upon between the two countries when individual victims’ rights to compensation for forced labor and other damages caused by Japanese colonial rule had already been addressed with the Basic Relations Treaty. It is on this basis that this paper that this paper reexamines the decisions on “colonial responsibility” as well as the arguments of its advocates and opponents. The Japanese government has had the normative recognition that, as the forced annexation of Korea and Japan in 1910 was made by the conclusion of the Korea-Japan Annexation Treaty which was legal under the international laws of the time, Japan’s forcible occupation of Korea and subsequent colonial rule made on this basis were also legitimate. It has denied its responsibility to compensate for illegalities against humanity involving its state power and other unlawful acts associated directly with its colonial rule; it has also been consistent in claiming that the conclusion of the Korea-Japan Basic Relations Treaty brought these issues to a complete end. Then comes the question: Was the Basic Relations Treaty actually intended to address issues with Japan’s “colonial rule,” as argued by Ihara Junichi? To answer this question, this paper empirically reviews the proceedings of the Japanese Diet from the conclusion of the Treaty in 1965 through the country’s first apology for its colonial rule in 1995. In the meeting of the Special Committee on Treaties and Agreements between Japan and the Republic of Korea on November 5, 1965, then-Prime Minister Sato said the 1910 Korea-Japan Annexation Treaty was lawfully concluded; Foreign Minister Shiina also stated that, with the conclusion of the 1965 Korea-Japan Basic Relations Treaty, the diplomatic protection of the two countries was waived while the compensation rights of individuals remained. On August 15, 1995, Prime Minister Murayama expressed his apology for Japan’s colonial rule and aggression. In the general session of the Upper House on October 5, however, he claimed the 1910 Annexation Treaty was entered into in a legally effective manner. In the meeting of the Upper House Budgetary Committee on August 27, Foreign Minister Yanai Shunji responded to a question by saying individual rights to compensation existed. Furthermore, the proceedings of the Japanese Diet―from the conclusion of the Korea-Japan Basic Relations Treaty in 1965 through Japan’s first apology for its colonial rule in 1995―hint that Japanese government officials have been unaware of the country’s standing as the assailant and thus have not recognized its “colonial responsibility.” Until former “comfort women” filed a lawsuit in the United States in 2000, they provided fairly consistent answers that diplomatic protection was “waived only partially.” In other words, they believed the Japanese government could not override individual rights to compensation. Against this backdrop, it would be fair to say that the Restitution claims to the government of Japan, prepared in September 1949 in regards to the reality of “colonial responsibility” that should have been incorporated into the Basic Relations Treaty, represented a rational demand for legitimate rights to recover colonial sacrifices―rather than a retaliation for penalizing Japan. With only one tenth of forced laborers reporting to the United States Army Military Government, the amount of compensation for damages and sacrifices caused by the forcible annexation of Japan and Korea and the subsequent Japanese colonial rule was estimated at 31.4 billion yen, or two billion dollars at the exchange rate of the times, which is comparable with the Economic Cooperation Fund of 1965. Japan’s colonial responsibility specified in the Restitution claims to the government of Japan was left unaddressed under the Korea-Japan Basic Relations Treaty as the Japanese government had no intention to fulfill such responsibility. Taking advantage of the United States’ Cold War strategy in East Asia, it believed its colonial rule over Korea was justifiable, viewing it as a “dispensation” for Koreans which helped modernize them. Focusing on “property” and “claims” as stipulated in Article 4, Paragraph (a) of the San Francisco Peace Treaty, the negotiations between Korea and Japan on postwar claims did not specify Japan’s responsibility for colonial rule. This, paradoxically, left “colonial responsibility” as an issue unresolved and to be therefore addressed under the Korea-Japan Basic Relations Treaty. In other words, the victims’ rights to compensation for illegalities against humanity involving the country’s state power and other unlawful acts associated directly with its colonial rule could hardly be seen as subject to the Korea-Japan Basic Relations Treaty. Since the conclusion of the Basic Relations Treaty, the Japanese government had consistently claimed that individual claims under the Treaty continued to exist. In 2000, however, its stance changed following a lawsuit filed in the United States by former “comfort women” for the Japanese troops, and Japanese courts have since made “politicized decisions” on this basis. Ihara Junichi’s claim that the Treaty was made to resolve the issue of Japan’s “colonial responsibility” mirrors the Japanese government’s stance. Released in 2010 as the centennial of forcible annexation between Korea and Japan, the Joint Statement of intellectuals from the two countries is the East Asian version of the 2001 Durban Declaration and Programme of Action. Getting the regional history right, it suggests, will lay the foundation for seeking a genuine process of historical reconciliation. Going beyond “negative peace” as a basic element of international laws premising an apology and compensation for colonial rule and war of aggression, we should now go for “positive peace” in which human dignity and rights are respected as universal values. This will make sure that another 50 years following the 50th anniversary of the Korea-Japan Basic Relations Treaty in 2015 serves as the starting point for working hand in hand to bring a East Asian peace community into reality.