프랑스민법상 제3자의 변제 및 변제공탁

Article 1342-1 of French Civil Code describes the general rules as to paiement by a third party : An obligation may even be discharged by a person who is not bound to do so, except where the creditor legitimately refuses it. The article disallows third party performance where the creditor legitimately refuses it. While in French law, a typical context for third party performance of an obligation is the case where the third party is the debtor’s agent, there is no need for the third party to have the debtor’s consent or authority to act in this way. Where the third party whose performance is accepted by the creditor has an interest in so acting, then the debtor is discharged vis-à-vis the creditor, but not the third party, who is subrogated by operation of law into the legal position of the creditor. Where the third party has no interest, he may have an independent right of recourse against the debtor if he can establish a recognised legal ground for so doing. Where the creditor wrongly refuses due performance, tender of what is due may be “consigned” to the relevant approved depositary(Article 1345). After consignation the debtor is discharged by operation of law. Consignation is a method of discharge provided to a debtor who cannot be discharged through performance. And it is the exercise of the right to be discharged, which is a kind of formation right belonging to the debtor. For example, creditors who have been entrusted with the business property of a tenant can deposit unpaid rents for the landlord. But where the creditor legitimately refuses third party performance, the third party cannot make a consignation. Considering the cases of victims of forced mobilization by Imperial Japan, based on discussions in the French Civil Code, the victims’ refusal to receive the amount offered by the Foundation for Victims of Forced Mobilization is legitimate. And the Foundation has no basis for making a consignation.