매매목적물로부터 발생한 과실의 귀속

This paper proposes to review theories and judicial precedents on acquisition of fruits arising from objects of trading and examine which of the standpoints systematically represents a consistent view. The standard with which to determine whether to attribute a fruit concerned has nothing to do with the reversion of ownership of the object or transfer of risks but with the time the object is delivered. Accordingly, any fruit accruing from a contract of trading that has been signed and prior to delivery is deemed to be attributable to the seller, while after delivery of the object, the right to accept the fault is attributable to the seller even though the fault occurred prior to the date when payment was made. Though, also in case delivery of the object is delayed for reasons attributable to the seller, there may arise doubt as to whether Article 587 applies in relation with the rights of concurrent performance, when Article 587 is viewed as a regulation intended to build an equilibrium with the two parties of trading involved, the seller can acquire fruit that has arisen until the time of delivery, and the buyer needs not pay interest for the payment. However, in case the buyer has not fulfilled the duty to deliver and keeps the object in his or her custody even though the buyer has made payment, the buyer is viewed as not having acquired the fruit. Since the equilibrium between the right to receive fruit and use of payment for trading should be valid even in case the trading contract has been void or cancelled, Article 587 is viewed as applicable even after the trading contract has become void or cancelled. However, in case the trading contract was terminated, the buyer who returns the object of trading has to return the payment along with interest applied to the profit accruing from its use in view of the purpose embodied in Article 587,Paragraph 2.