쌍무계약상 채권자의 위험부담과 채무자의 이익상환 = A Study of the Creditor"s Risk of Loss and the Debtor"s Duty to Reimburse the Profit in the Bilateral Contract

다국어 초록 (Multilingual Abstract)

  This paper aims at analyze the debtor"s duty to reimburse the profit under the creditor"s risk of loss in the bilateral contract. The relating arguments in several foreign countries including Germany, America and Japan is introduced and studied for the comparison with Korean argument.<BR>  The four countries have the same principle that the debtor should risk the loss or destruction of the subject matter of the contract without any fault of the parties of the bilateral contract. They have the similar exceptions that the risk is shifted from the debtor to the creditor. The exception cases are where the creditor is negligent in the loss or destruction, where the loss or destruction occurs without any fault of the parties while the creditor delays reception of the subject matter, and where the subject matter is delivered to the creditor before its title is transferred to him.<BR>  The creditor should perform his duty in the contract without receiving the equivalent from the debtor according the exception rule because the creditor is culpable about the impracticability of performance of the equivalent. The creditor"s unilateral performance means that he compensates for the loss which he inflicted on the debtor. So he should perform his duty just within the actual loss. Therefor when the debtors takes some profit owing to exemption from his duty, the profit should be deducted from the loss.<BR>  The employee can claims back-pay to the employer who fired the employee unduly and illegally. When the employee get the income from another job during the discharge period, the employer does not have to pay the amount corresponding to the income. But the Korean Supreme Court rules that the employer should give the more back-pay to the employee than the amount of compensation for business suspension by the labour law. Its justifications are poor, but the conclusion is correct.

목차 (Table of Contents)

• Ⅰ. 서론
  Ⅱ. 외국의 논의
  Ⅲ. 우리의 논의
  Ⅳ. 결론
  Abstract