대상청구권에 대한 입법론적 소고- 민법개정안을 중심으로 -

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.