연대보증제도의 운영현황과 개선방안 = (The) Operational State and Improvement Plan of the joint Several guaranty

다국어 초록 (Multilingual Abstract)

After IMF situation, there have been a lot of cases, which the people standing surety for other's loan, become bankrupt occurring one after another in Korean society, thereby rising a serious problem with the joint and several guaranty. Before, Korea was generalized with banking practice that made a loan only if a surety is the 'security'. In this situation, as the cold wave of the IMF hit Korea, there were sudden increases in bankrupts, thus the cases that was dismissed for being a credit defaulter due to secured debt and committed joint suicide by a family due to living difficulties at all appeared in succession. Especially, because of 'Korean humanity', an acquaintance, a classmate and a colleague might give security for the joint and several guaranty. So, there were a lot of cases that a debtor's bankrupt continued to a surety, thereby extending to breaking of family as well as individual. Therefore, it brought about a large number of serious social problems such as that, by being unreliable to each other, the credit society could be floating and people fell into the bottomless pit of distrust. Even some researcher called the system 'the economical guilty-by-association system' or 'the hostage system' and had negative view on that itself, insisting that to have a risk of economical sinking by a surety without any counter-presentation is the infringement of pursuit happiness power and reputational right in accordance with the Constitution.
The joint and several guaranty strongly press a surety in points of that it is not allowed supplementarity and discreet benefit unlike a simple guaranty. This system is surely for a creditor (financial agency), but both positive and negative function is coexisted in the same way as other system. While this is necessary to be used as an inevitable way to secure financial credit in a debtor's place, as above, there are also a lot of problems exposed in the system operation. Of course, the important task is to promote the systemic conditions for full satisfaction of debt by major debtor.
This study aims to seek a plan to minimize operational problems, and, at the same time, to keep positive functions of the system. To do that, we analyzed the operational realities of the joint and several guaranty for credit transaction, and then, suggested systemic improvement plans for the problems from the system.
Problems of the joint and several guaranty, which is not only today's matters, are appeared as serious social problems especially after the IMF situation. The system that financial institutions prefer it specially is very emphatic on the right of a creditor, namely financial institution, and really stingy to the protection of a surety in the aspect of that it has no the best right of defense, that of search, and no discreet benefit.The most apparent difference compared to other countries' legislations is that there is no stipulation to protect sureties in the contents. Considering this, theories and precedents are to provide the protection by interpretation but the extent of protection is considered to be minimal compared to other countries and it is considered that there is limit in it. That is, limiting the range of guarantee liability considering the intention of relevant person should be done within the range of the theory of the interpretation of declaration of intention thus there must be limitation. Also, although the principle of faith is functioning not only as the criterion of the interpretation of legal actions but also as a means to control the contents, there are many potentiality to be criticized such as that the application of the principle of faith in limiting the liability of guarantee may hurt the soundness of law or that the judgement may be made by the will of judges. Considering all these aspect, it can't be denied that the sureties under the civil law of our country is in quite unfavorable position compared to the sureties in other countries.
Here, as can be seen in other countries' law, the right of argument about notification and the right to argue about search should be acknowledged partially based on the cases and it is desirable that the case that the reported loss by the succession of guarantee debt that is a system operated only in Asia area such as our country and Japan disappears. Also, like in the civil law of Swiss, it is desirable the system that requires the agreement of spouse to make a guarantee contract is introduced and systemized.
The joint and several liability on guarantee system has more negative functions rather than positive functions from the standpoint of consumers considering various aspects thus some people even consider it as a system that has to be improved or has to disappear but is a very useful system for businessmen or individuals with insufficient security giving the benefit of economic activities thus it is considered that a measure to supplement should be prepared to activate the system.
To review adverse effects of joint and several liability on guarantee system by now, there are many cases that the problems arouse because the guarantees were provided just emotionally bound to the humanism without properly perceiving the legal responsibility. But since the perception on joint and several liability on guarantee system has been changed a lot as people experienced IMF, if the positive functions are vitalized and actively utilized, the system is considered to be able to play a key role in activating the people's economy.
As the method to improve the problems owned by the joint and several liability on guarantee system, the role and function of credit guarantee insurance system are needed to be strengthened. And if the system of credit guarantee insurance is to be operated effectively, the funds from corporations or government are needed to be enlarged and stable management of the funds remains as a task. Also, to settle the system of guarantee insurance, the guarantee insurance company should be changed to a public enterprise and continuous financial support from government is needed.
If joint and several liability on guarantee system is removed and no guarantee credit base loans can be operated though the establishment of credit infrastructure, it will be the best policy but it should be practically difficult considering the reality of our country. Here, with active improvement of the weakness of credit information infrastructure on government level, it is desirable that appropriate sureties provide the guarantee and the loans based on credit is activated to make the opportunity to advance the settlement of the society of trust of the advanced countries' level.

목차 (Table of Contents)

• Ⅰ. 序 論 5
• 1. 硏究의 目的 5
• 2. 硏究의 範圍 및 方法 6
• Ⅱ. 連帶保證制度의 主要內容 8
• 1. 連帶保證의 意義 8
• (1) 人的 擔保의 機能 9
• (2) 保證의 特殊形態 9
• 2. 連帶保證의 性質 10
• (1) 附從性 12
• (2) 補充性의 否定 13
• (3) 分別의 利益의 否定 13
• 3. 連帶保證의 成立 및 效力 13
• (1) 連帶保證의 成立 13
• (2) 連帶保證의 效力 15
• 4. 連帶保證의 種類에 따른 責任 範圍 18
• (1) 責任範圍 -特히 繼續的 去來에 基礎한 保證責任 範圍 17
• (2) 保證期間 24
• (3) 信用카드 保證人의 責任範圍 26
• (4) 物上保證이 竝存한 경우의 保證人의 責任範圍 26
• 5. 連帶保證人의 權利 28
• (1) 催告 및 檢索의 抗辯權의 否定 27
• (2) 主債務者의 相計權 29
• (3) 主債務者가 取消權, 解除權, 解止權을 가지고 있는 경우의 保證人의 履行拒絶權 31
• Ⅲ. 連帶保證制度에 관한 比較法的 檢討 32
• 1. 독 일 32
• 2. 스위스 34
• 3. 프랑스 38
• 4. 일 본 40
• 5. 네델란드 40
• 6. 캐나다 42
• 7. 소 결 44
• Ⅳ. 連帶保證制度의 現況 49
• 1. 連帶保證制度의 運營 現況 49
• 2. 金融機關 與信去來上 連帶保證制度의 現實과 主要事例 50
• (1) 催告檢索의 抗辯權이 없는 連帶保證責任 50
• (2) 分別의 利益을 갖지 못하는 連帶保證責任 51
• (3) 物的 擔保提供 및 人的保證을 한 경우의 責任 52
• (4) 保證人이 모르는 貸出이 取扱된 경우 保證責任 53
• (5) 死後에도 相續되는 連帶保證制度 53
• 3. 金融機關 與信取扱時 改善된 連帶保證制度 54
• 4. 連帶保證人의 保護方案 60
• (1) 連帶保證人 保護를 위한 特別法安의 主要內容 55
• 1) 約款上 明示 및 說明義務의 부과 57
• 2) 主債務의 自動延長과 連帶保證人의 追加 同意 59
• 3) 保證方式의 制限 65
• (2) 2000年 銀行聯合會 連帶保證制度 改善方案 公聽會 資料 57
• 5. 信用社會의 定着을 위한 新 保證制度의 提言 61
• (1) 保證限度 算定方式의 合理的 改善 61
• (2) 個人信用評價시스템(CSS) 精巧化 및 活用度 提高 61
• (3) 連帶保證人의 權益强化策 마련 62
• (4) 信用保證保險制度 活性化를 통한 國民經濟 活性化 63
• (5) 先進 信用社會 정착을 위한 信用인프라 構築 64
• Ⅴ. 結 論 66