辨濟의 法的 性質 및 構成要件에 관한 立法論的 考察

Abstract

This paper has focused on my personal opinion that aims to investigate problems in the provisions of the performance of obligations in current Korean Civil Code and to propose a way of revising and a definite plan for amendment of the current Korean Civil Code. The summary of conclusions of this paper is as follows. (1) It is commonly accepted that the legal nature of the performance of obligations is n ot a j udicial a ct(contract) b ut i s a simple l egal f act or a q uasi judicial act, and that the full performance of obligations consist of only an objective realization of payment(in german term “Leistung”) under the Korean Civil Code. But it must be understood that the legal nature of the performance of obligations is a contract under the Korean Civil Code such as the performance of obligations is a contract under the French Civil Code(Code Napoleon), because there is the provision §464 in the Korean Civil Code that has originated from the Article 1238 of the French Civil Code(there is not such a provision in German Civil Code) and the provision(§464) provides that the performnace of a goods-delivering obligation requires legal capacity of the assignor of goods and the provision(§464) provides that the assignor of goods can make cancellation of the performance by virtue of legal incompetence of himself. Unless the Korean Civil Code premises that the legal nature of the performance of obligations should be a contract(the theory of contract: in german term “Die allgemeine Vertragtheorie”), the provision(§464) cannot be provided like this. (2) Since “the theory of contract(Die allgemeine Vertragtheorie)” has defects in the theoretical aspect, in a legislative point of view it is not to be desired that “the theory of contract(Die allgemeine Vertragtheorie)” should be prescribed in the Civil Code. Therefore it is desirable that the provision §464of the Korean Civil Code that prescribes as a result the theory of contract should be deleted. (3) In addition to this it needs to revise the provision §463, and §465 of the Korean Civil Code to solve these problems as follows;a. to establish a new provision(§460) that stipulates the condition and the effect of the performance of obligations and,b. to delete the provisions §463 of the Korean Civil Code of which is out of tune with the provisions §570 ff. of the same Code.