금전 아닌 물건의 급여를 목적으로 하는 제3자를 위한 계약에서 기본관계의 법정해제 시 급여목적물의 반환관계 -대법원 2021. 8. 19. 선고 2018다244976 판결에 대한 평석-

The Supreme Court of Korea rendered the decision 2018Da244976 on August 19, 2021. The main issue of the case was this: When the relationship between the promisor and the promisee (basic relationship, Grundverhältnis) of a contract in favor of third person has been rescinded, shall the promisor seek against the third person beneficiary, restitution of the non-monetary property that he transferred under the contract? The holding was as follows: “If the third person beneficiary has come to have new interests before the rescission by forming value relationship (Valutaverhältnis) with the promisee on the basis of the basic relationship and has acquired real rights on the transferred property by registration or delivery before the rescission, he shall be protected from the effect of the rescission under the proviso to the Korean Civil Code § 548 (1).” The Korean Civil Code § 548 (1), under the title “Effect of Rescission and Restitutio in Integrum”, states that “If one of the parties has rescinded the contract, each party shall be liable to restore his/her other party to his/her original position: Provided, that the rights of third persons shall not be prejudiced thereby.” Unfortunately, the decision had a fatal flow; its holding did not fit its facts. In fact, the basic relationship in this case was formed after the value relationship, and the purpose of the former was to fulfill the promisee’s obligations under the latter. Hence, it was inappropriate to predicate that “the third person beneficiary … [formed the] value relationship […] on the basis of the basic relationship” in this case. Based on this observation, this article classifies contracts in favor of third person into three categories: (a) ones for abridgment of performance and whose value relationships precede basic relationships, (b) ones with the same purpose but whose basic relationships precede, and (c) ones for provision of care. By examining the proviso to the Korean Civil Code § 548 (1) and conflicting interests of the promisor, the promisee, and the third person beneficiary in each category, this article demonstrates the following: 1. The holding of the decision is valid only for the category (b), contracts in favor of third person intended for abridgment of performance and whose value relationships precede. 2. In the other two categories - the contract in favor of third person in this case belongs to the category (a) - the promisor can seek the restitution against the third person beneficiary in principle with the aid of rei vindicatio, actio negatoria, or the Korean Civil Code § 548 (1).