대상청구권에 대한 비판적 검토 - 인정 근거 검토 및 개정안에 대한 비판적 제안 -

Although the Right to Claim for Substitute is not explicitly stipulated in the Korean Civil Code, it has been recognized under legal interpretation by prevailing scholarly opinion and judicial precedents, and is effectively applied in practice. Furthermore, legislative attempts to formalize this right continue to be made. Therefore, it is necessary to critically examine the feasibility of explicitly incorporating the Right to Claim for Substitute into the Civil Code, its legal basis, the requirements for its exercise, its scope of application, and its effects. This paper will examine the requirements and effects of this right, as well as the interpretive grounds for its recognition, to argue that the acceptance of the Right to Claim for Substitute is unnecessary. In addition, by reviewing the contents of the 2013 and 2024 Civil Code amendment proposals, the legal nature of the right and the scope of restitution will be further analyzed. This paper primarily argues from the position that the institution of the Right to Claim for Substitute is unnecessary. However, considering the continuous efforts towards its codification, a supplementary discussion will specifically propose that the Debtor's Culpability must be additionally considered if the right is to be legislated and maintained as a system. In this context, the Debtor's Culpability should be limited to willful misconduct. It is asserted that caution is needed because the historical origin of the Right to Claim for Substitute lies in the Roman law principle of Creditor's Bearing of Risk, which operates under a different legal system. Furthermore, the extension of the creditor-debtor relationship, such as the maintenance of the contract, does not represent the genuine intention of the parties. It is also stressed that granting creditors an additional option—the Right to Claim for Substitute—when systematic problem-solving is already possible with existing Civil Code provisions, constitutes excessive protection for the creditor. This ultimately does not align with the concept of fairness and the equitable balance of economic interests. In conclusion, given its history, the Right to Claim for Substitute is difficult to explicitly incorporate into our Civil Code, which adheres to Article 537 (Debtor's Bearing of Risk). Since existing legal frameworks, including the Doctrine of Risk Bearing, the system of Damages, and the law of Unjust Enrichment, already allow for reasonable protection of creditors, there appears to be little necessity to interpretively recognize this right via judicial precedent when there is no statutory provision. Given that the legislative and policy necessity is also not substantial, there is no strong need to insist upon its interpretive recognition or codification, especially considering its potential conflict with existing legal principles. The absence of an explicit provision for the Right to Claim for Substitute is not a legal deficiency, as argued by some theories, but rather the legislator's intent and a consideration for consistency with our overall Civil Code system. Therefore, there is no need to excessively grant creditors this option—which is not even stipulated in our Civil Code—for the sake of creditor protection, and it is preferable not to disturb legal stability by codifying it when existing legal principles suffice. However, in light of the continuous discussions regarding the codification of the Right to Claim for Substitute, a counter-proposal for legislation is also suggested, which considers the Debtor's Culpability. The significance of this alternative lies in making the Debtor's Culpability an essential requirement, thereby limiting the Right to Claim for Substitute to impossibility caused by the debtor's attributable fault, while cases of impossibility not attributable to the debtor are resolved according to Article 537 (Debtor's Bearing of Risk) of the Civil Code. This approach respects the existing framework of the Civil Code while avoiding the general application of the Right to Claim for Substitute.