국제사법상 병존적 채무인수의 준거법 - 대법원 2022. 7. 28. 선고 2019다201662 판결 -

Concurrent debt assumption refers to a contract in which a third party independently and additionally bears the same debt to the creditor along with the existing debtor, separately from the existing debt. According to precedent, a concurrent debt assumption can be established through a three-sided contract between the creditor-debtor-acquirer, contract between the debtor-acquirer, and contract between the creditor-acquirer. Meanwhile, with respect to the governing law of concurrent debt assumption, since the new debt borne by the acquirer must have the same contents as the debt borne by the existing debtor, the governing law between the creditor and the acquirer must, in principle, be the same as the governing law of the existing debt. Therefore, the Supreme Court ruling pointing out this point is justified. However, since the governing law of debt assumption as stipulated in Article 54 of the Private International Act means the governing law of exempt debt assumption, unlike the case of a claim assignment, there is a problem with the Supreme Court ruling, which seeks the basis in Article 54 of the Private International Act for the assumption of concurrent debt that does not imply an act of disposition of the credit or debt. In our legal system, which does not directly introduce the legal principle of ‘Vicarious liability’ in English-American legal system, it is difficult to find cases in which a person bears the debts of others despite no fault of their own. Furthermore, there is no provision in our Private International Act regarding the governing law of debt assumption by law. However, while the Supreme Court recognizes the legal nature of the third party’s direct claim against the liability insurer under the liability insurance contract as the victim’s right to claim damages. also interprets that the liability insurer has concurrently taken over the liability for damages borne by the insured, the perpetrator, against the third party. Regarding the governing law of the third party’s right to make a direct claim under a liability insurance contract, the Supreme Court ruled that since the law chosen by the parties or the law of the country closest to the contract is the law governing the contract according to Article 45 and 46 of the Private International Act, the governing law of the insurance contract is the law governing the third party’s direct claim. Considering that the details of the third party’s direct claim under the liability insurance contract and the limit of the insurer’s liability for compensation are matters to be determined according to the insurance contract, the governing law of the third party’s direct claim under the liability insurance contract shall be the governing law of the insurance contract. These legal principles are considered to be the same in principle even when liability insurance is compulsory by law.