대상청구권에 관한 판례의 비판적 검토

Under the Korean Civil Law, we cannot find out any provision regulating the claim right of compensation. However, majority of scholars contend that such a right be admitted as one of the effects of non-performance of obligation. In the same context, Korean Supreme Court has also ruled in the same manner since it ruled that the claim right of compensation could not be denied as a effect of non-performance of obligation. However, such ruling and manner has no only clearly supporting legal ground, but also is not logical. Moreover, it has been a long-standing attitude of the Korean Supreme Court in which a debtor has a claim right of compensation when the impossibility of performance cannot attribute a fault to a debtor. This kind of interpretation embedded in the court's ruling is clearly against the current provision of section 537 of Korean Civil Law which defines the principles of obligator’s burden to bear the risk. From this perspective, I think that current court's interpretation has serious defects under the current regulatory scheme. I can figure out that such a problem results from the historical reason that Korean legal system has uncritically adopted German legal system of the claim right of compensation even though Korean Civil Law may resolve such a problem by adopting a new provision. In short, this paper explains that current Korean Supreme Court’s case on the issue of the claim right of compensation should be reconsidered in the future because of the aforementioned reasons.