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Legal relationship between Obligee Right of Revocation and Obligee of the Beneficiary in the Obligee's Right of Revocation

  • DONG-A LAW REVIEW
  • 2011, (52), pp.537-567
  • Publisher : The Institute for Legal Studies Dong-A University
  • Research Area : Social Science > Law

choo sin young 1

1전북대학교

Accredited

ABSTRACT

The revocation and bringing the matter to its original status according to the provisions of the preceding Article shall take effect for the benefit of all Obligee's in the Civil Law Code 407. This regulation declared the principle of equality among Obligee's. A common view and judical precedent are opted relative effect theory in the Obligee's Right of Revocation. For that reason, Because Obligee's Right of Revocation is legally effective to the beneficiary. But, Obligee's Right of Revocation should legally effective in a third party. This study precedent was adopted relative effect theory. I doubts about common views and judical precedents by the intent of Obligee's Right of Revocation. Recently, our nation scholars insisted some theory in this case problem. First, Theory of reflexive effect that is extends effect of judgment to Obligee of the Beneficiary. Therefore, Obligee's Right of Revocation have take precedence over obligee's of provisional attachment. But this theory is groundless in by legally. Second, Theory of application of the civil execution law that is admits the order of priority to whoever comes first. This theory up-to-date for conquest the superiority and inferiority among Obligee's Right of Revocation and Obligee of the Beneficiary. But this theory be criticized by scholars, because that is doesn’t know procedure law from a substantial law. Third, Theory of emphasis of the relative effect that is sympathize with judical precedent. This theory protect a third party in good faith and shouldn't be a third party in ill-intentioned. But this theory be criticized by the purpose of legislation of the Civil Law Code 406. I think this traditional theory and judical precedents are need to be tailored to fit into the realities.

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