변제충당 규정의 해석론적 및 입법론적 문제점과 개정제안 - 민법 제478조, 제479조를 중심으로 -

초록

The creditor is entitled to refuse to accept partial performance without being subject to delay of acceptance. On the contrary, he shall not refuse to accept a rightful performance which is able to extinguish an independent obligation. The same principle applies to the case where the debtor owes many obligations of same kind to the same creditor, unless there is a different agreement between them. In other words, the article 476 para. 1, which provides that the debtor has the right to decide to which obligation the performance is to be imputed, represents this principle; the article 476 para. 2, which provides for the creditor's right to imputation of performance, can be interpreted in such a way that this provision is compatible with the debtor's right to imputation of performance because the creditor's right is withdrawn as soon as the debtor objects to the imputation by the creditor; from such a perspective, the article 477 can be said to be based on the debtor's reasonable intention. That being said, the article 479 para. 1, which provides that in the case of an obligation and many obligations, a payment by the debtor is to be imputed, first, to expenses, secondly, to interest, and finally, to principal where the payment is insufficient to cover all the debts mentioned before, is certainly contrary to the principle mentioned above. This paper deals with interpretative and legislative problems in relation to the imputation of performance provisions, focused on the articles 478, 478. First, even though the legislator of the article 478 might have intended to regulate the case where the debtor owes many performances arising from a legal relation with the creditor, civil law theory does not distinguish between a duty to performance and an obligation. On the top of this, the articles 476 and 477 regulate the case where the debtor owes many obligations of the same kind to the same creditor; it means that the article 478 is, de lege ferenda, to be deleted in that it duplicates the same provision of articles 476 and 477. Secondly, this paper criticizes the ratio of article 479 and the interpretation thereon. The legislator intended that, for instance, in the case of many obligations producing dependent expenses and/or interest, the payment shall be to be imputed, first, to the expenses and interest of all the obligations due and secondly, to principals, the order of imputation of payment to which shall be determined in accordance with articles 476 and 477, unless there is a different agreement between them. Such a legislative intention has been followed, without any alteration, by the Korean Supreme Court in many cases, on the top of which the said court has interpreted expenses and interest of the said article in such a wide way that even independent expenses and interest are likely to be subject to the article. This paper criticizes such a ratio and interpretation in that they deteriorate fundamental private law principles settled in articles 460 and 400, which represent the parties' autonomy and respect to self-determination on own property, on the top of which they are too harsh to the debtor. Accordingly, this paper suggests that each obligation is to be recognised as an independent debt in terms of articles 476 and 477 unless there is a different agreement or provision, and claims that it is necessary to revise the article 479 in order to regulate the case of an obligation and in order for the debtor to be allowed to make partial performance in accordance with article 479.

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