채권법상 방해배제청구권|RISS 상세보기

다국어 초록 (Multilingual Abstract)

In broad sense, the infringement of obligation is said to be the objects of obligations being disturbed by them. The infringement of obligation is divided into two cases, according to position of invaders. One is the infringement of obligation by the obligor and the other is that by the third person. But this study is limited to the latter.
This thesis is to investigate the possibility of the infringement of obligation by the third person other than the other side in the aspect of the intrinsic attributes of obligation. I think the above theme could be well sum marized into the two problems : how The obligation, by the reason of its relative effects, is connected with the torts and whether the claim for the protection against violation is recognized to the third person or not.
Since obligation, as relative right, cannot exert the absolute influence, the judicial precedents and theories in the former civil law did not recognize the violation of obligation. As the obligation, however, has come to actually exert a wide effect to a society for the attributes of their property right and assignment, increasing the possibility of violation, the persons concerned, nowadays, feel keenly the protection of obligation.
Finally, the modern common view and judicial precedents have come to agree to recognizing the infringement of obligation by the third person, but there are many different views on giving well-grounded and legal effects to it. First, in the case of infringement of obligation, they agree to the tort themselves, they raise the different theoretical bases: inviability of right(of the former civil law), illegality theory(of the current civil law). Second, it is dominant that they passively interpret the claim for abatement as the effect of obligation itself in relation to the basis of claims for real right. Merely, in case of obligation, especially the right of lease for the purpose of use of properties or place, the theories concerned with the ways of the public notification are too diversified, this thesis dealt the recognition of the tort and the claim for the abatement against violation in the fringement of obligation, and be to write in center the latter.
The the claim for the abatement against violation in the fringement of obligations should be denied in principle. It is because the claims for the abatement against violation is based on the nature of direct control or that of conclusion. But although it is denied in principle, it is appropriate to be affirmed exceptionally for the obligations which comes to the level that has such attribute. The other side, on the right of lease to the immovables, if the invader gas a proper right in relation to the possessor of that immovables, it is only affirmed when the leaseholder comes to have the nature of exclusion because it is the problem of opposing power. But the case of illegal occupier, it should be also affirmed when the leaseholder only occupies the immovables.

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