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@article{ART001272495},
author={정구태},
title={Legal Nature of the Claim of Return for Legally Secured Portions},
journal={DONG-A LAW REVIEW},
issn={1225-3405},
year={2008},
number={42},
pages={229-272}

TY - JOUR
AU - 정구태
TI - Legal Nature of the Claim of Return for Legally Secured Portions
JO - DONG-A LAW REVIEW
PY - 2008
VL - null
IS - 42
PB - The Institute for Legal Studies Dong-A University
SP - 229
EP - 272
SN - 1225-3405
AB - This paper examines the formative effect of the claim of return for legally secured portions from a theoretical standpoint which understands the legal nature of the claim of return for legally secured portions to be ‘Gestaltungsrecht’(German for the right, the holder of which is permitted to unilaterally cause changes in one's and/or other party's legal relationship). When the claim of return for legally secured portions is exercised, a gift or a testamentary gift that infringes on legally secured portions will be nullified retrospectively, as a result of which the right holder of the legally secured portions will acquire a real right-like claim as well as the claim of return for unjust enrichment. In terms of the realization of ownership, the application of the provisions stipulating the real right-like claim and the claim of return for unjust enrichment concur. In ordinary cases the right holder of legally secured portions will bring a claim for the return of the principal thing through the exercise of the claim for return of article owned(Civil Law Article 213). However for the purpose of settling debt, only the law on unjust enrichment will apply. In other words, from such a viewpoint like the one in this paper, in respect of the legal relations between the right holder of the legally secured portions and other party after the former’s exercise of the claim of return, the return of the principal thing is regulated by the provisions concerning the real right-like claim and the claim of return for unjust enrichment, whereas interest intermediation issues incidental to return (such as the return of profits attained from the object, liability for the loss or damage of object, the redemption of the expense incurred by the other party) are to be regulated by the provisions on the return for unjust enrichment. As a result the Korean Civil Law can be said to a unified and comprehensive regulatory system of law, showing no defects in this respect. However if the claim of return for legally secured portions is understood as ‘Gestaltungsrecht’, Korean Civil Law would have defects of the provisions for limiting the prospective effect towards the bona-fide third party in terms of the return of legally secured portions, and this would in turn undermine the safety and stability of transactions. Therefore it would necessitate the protection of the bona-fide third party thorough the means of analogizing the value assessment underlying the provisions on the protection of the bona-fide third party.
KW - the claim of return for legally secured portions;‘Gestaltungsrecht’(German for the right;the holder of which is permitted to unilaterally cause changes in one's and/or other party's legal relationship);the obligatory right-like claim;the real right-like claim;the claim of return for unjust enrichment;supplement of the defect of law by analogy;transfer of the title
DO -
UR -
ER -

정구태. (2008). Legal Nature of the Claim of Return for Legally Secured Portions. DONG-A LAW REVIEW, 42, 229-272.

정구태. 2008, "Legal Nature of the Claim of Return for Legally Secured Portions", DONG-A LAW REVIEW, no.42, pp.229-272.

정구태 "Legal Nature of the Claim of Return for Legally Secured Portions" DONG-A LAW REVIEW 42 pp.229-272 (2008) : 229.

정구태. Legal Nature of the Claim of Return for Legally Secured Portions. 2008; 42 : 229-272.

정구태. "Legal Nature of the Claim of Return for Legally Secured Portions" DONG-A LAW REVIEW no.42(2008) : 229-272.

정구태. Legal Nature of the Claim of Return for Legally Secured Portions. DONG-A LAW REVIEW, 42, 229-272.

정구태. Legal Nature of the Claim of Return for Legally Secured Portions. DONG-A LAW REVIEW. 2008; 42 229-272.

정구태. Legal Nature of the Claim of Return for Legally Secured Portions. 2008; 42 : 229-272.

정구태. "Legal Nature of the Claim of Return for Legally Secured Portions" DONG-A LAW REVIEW no.42(2008) : 229-272.