보증계약상 채권자에 의한 보증인 지위의 침해- 미국의 Restatement of the Law를 기초로 -

Despite all efforts to protect sureties by enacting and amending the Special Act on Guarantor Protection and also by adopting creditors’ obligation to provide information and notification duty in civil law, our civil law still stays in its box perceiving superior position of the creditor centered on the principal debt. As can be seen above, precedent in the supreme court also tries to understand guaranty debt based on these old-fashioned thought of civil law, and it can confirm that it is insufficient to protect the guarantor because it tries to understand the guarantee debt. Although the guarantor under the civil law is an independent concerned party on contract of suretyship, his plea is mostly based on the principal debtor’s right according to appendant nature of the contract of suretyship rather than an intrinsic rights to the guarantor. At this point, it reveals the limit of vulnerability in the legal status of the guarantor. But expanding guarantor’s plea doesn’t mean the legal status of the guarantor can be sufficiently guaranteed. If the plea is passive regulation in protection of the guarantor, setting the obligation of the creditor to the guarantor would be a very positive attitude. In this respect, the obligation of the creditor should be separately regulated, if the guarantor contract is required to protect the guarantor. If so, it would be possible to solve a considerable number of problems simply by creating new regulation creditors’ “Obligation to prohibit the infringement of guarantors’ profit”. However, it should be noted that most contracts of suretyship are joint sureties in practice and the principal debtor takes the proxy so that the guarantor's position will be weakened to assert right of defense. Therefore, the obligations of creditors to the guarantor are more meaningful in the joint surety than the simply surety. If the obligations of the creditors to the guarantor are regulated in the reality that the joint surety is generally performed, the status of the joint guarantor whose legal status is relatively weaker than simple guarantor can be strengthened because of unrecognized right in relation to the supplementary nature. Thus, it is necessary to create new regulations in the ‘Special Act on Guarantor Protection’ on creditors’ obligation to the guarantors as in Article 32 and the provisions for protection in violation of status of guarantor as in Article 37 of the ‘American Restatement of the Law’. It would also be indispensable to extend a scope of application in Article 436-2 of the Civil Code or add regulations on duty to prohibit infringement of guarantors’ profit.