민법개정안의 몇 가지 쟁점에 관한 고찰 ; 대상청구권 -민법개정안을 계기로 한 해석론과 입법론- = Claim for the Substitute

다국어 초록 (Multilingual Abstract)

The new draft for a Civil Code Reform suggests introducing new provisions for the creditor’s claim for the substitute (art. 399-2, 537 II): The creditor can claim the assignment of a right or benefit which his/her debtor obtained as a result of the latter’s performance being impossible. At this occasion, this article aims to give a retrospective assessment of the present doctrine and case law accompanied by a critical review of the new draft provisions. It thus hopes to contribute to the ongoing discussions. The main conclusions lege lata are as follows: ① The related parties’ interests ask for recognizing the claim for the substitute in all relevant cases. ② As for obligations arising from the law, the purpose of each underlying norm decides. ③ The claim is understood to have its theoretical basis on the principle of unjustified enrichment in that it inter partes shifts the value of impossible performances to the frustrated creditor. ④ The so-called commodum ex negotiatione has to be included. ⑤ The right or benefit in question has to be assigned only as far as the creditor’s damage is not covered. ⑥ The impossibility of an obligation to do or not to do can also trigger the claim. These points mentioned above are also suggested to be considered upon lege ferenda.