금액이 다른 부진정연대관계에서 다액채무자의 일부변제의 효력- 대법원 2018. 3. 22. 선고 전원합의체 판결에 대한 평석 -

In a recent en banc decision on March 22, 2018 2012da74236, the Korean Supreme Court changed the preexisting twelve Supreme Court Decisions of dualistic approaches on how does the partial performance eliminate claim of other debtors when a large debtor in untrue joint and several obligations does partial performance, by seeking for unitary settlement based on the theory which gives the creditor an advantage in the extinction of claim, so-called the theory of outside [wheacheksul] : one of main reasons are as follows. First, the aim of the untrue joint and several obligation is focused on protecting the victim, by making the joint debtors who caused the infringement, regardless of whether the cause of the debt is the illegal act or the default, liable of damages if only the unilateral infringement of the victim is recognized. Second, it stands to reason that the risk of the debtor who made some reimbursement is reasonable to be borne by the debtor other than the victim. Last but not least, since the contributory negligence has already been considered when determining the scope of the liability of the joint debtor, there is no reason to distinguish the type of liability of Joint Tort-feasors and the type of Employer's liability for compensation. Therefore, this en banc decision is meaningful that it established a single standard that can be uniformly applied to all types of the large debtor’s partial performance in untrue joint and several obligations.