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Effects of Partial Reimbursement by One Person among Debtors of Semi-joint and Several Debts

  • DONG-A LAW REVIEW
  • 2015, (67), pp.275-300
  • Publisher : The Institute for Legal Studies Dong-A University
  • Research Area : Social Science > Law

Bae, Sung Ho 1

1영남대학교

Accredited

ABSTRACT

This study examines legitimacy and inequity of a dualistic solution from the perspective of the joint debt and outer perish theory adopted in judicial precedents with respect to the scope of residual liabilities of other semi-joint and several debts when debtors of semi-joint and several debts who absorb a large sum of liabilities among other debtors with differing amounts of debts in semi-joint and several debts have made partial reimbursement, and explores the possibility of a unitary solution. When debtors of semi-joint and several debts who absorb a large sum of liabilities among debtors with differing amount of liabilities have made a partial reimbursement, an examination of the scope of residual liabilities of semi-joint and several debts shows that it is thought that it is legitimate to solve the problem in a unitary manner by adopting the outer perish theory in case the debtor of a large amount among semi-joint and several debts reimbursed the debt partially in consideration of the aim of the semi-joint and several debts system intended to secure without fail full reimbursement of debts and attitudes of judicial precedents concerning effects of reimbursement in certain guarantees when the intent of the party concerned and consideration of reimbursed interests of the creditor have been taken into account. That is, a review of the ground of fault ratio theory shows that the theory takes into account beforehand the possibility of the employer being unable to reimburse and reflects this on partial reimbursement. However, the matter of effects of partial reimbursement and distribution of dangers incidental to financial inability are matters on a different level, and it is thought to be sufficient enough to adjust as an ex post facto intended interests in the judicial precedent in case the debtor's financial inability has happened. Accordingly, since the employee or the debtor who does the reimbursing does not ultimately have separate reimbursed interests when the interests of the debtor who does the reimbursing, other debtors and the creditor have been adjusted based on effects of partial reimbursement without premising financial inability, of the interests of the creditor and other debtors whose interests will constitute a problem. That is, if the fault ratio theory has been adopted, since reimbursement has significant effects on other debtors due to relatively partial exemption it is unfavorable for the creditor and when the outer theory has been adopted, extinction in the common portion occurs relatively infrequently, rendering the creditor favorable. This is the point of time for the protection of the creditor in semi-joint and other debts and could be an interpretation that yields benefits for the reimburser as well.

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