면책된 파산자의 보증인의 책임범위에 대한 고찰

다국어 초록 (Multilingual Abstract)

People have a tendency not to evaluate properly about risk of Surety Obligations, occur or extinct under the uncontrolled factors of Surety, because there is no actual burden in the signing of contract. Especially, it is hard to admit obligations as for Surety signing contract through the influence of human relations or earnest request, when it become actualized. Furthermore, 31.8% of the Surety have an experience of repaying principal and interest for the Principal Obligor. Therefore, not only the financial circle but also the legal circle, acknowledging about the harmful effect of surety obligations system, tried to minimize the harmful effect by various measures. However, the situation of Surety in the bankruptcy procedure has not been improved since the Bankruptcy Act or the Integrated Bankruptcy Act was enacted. In the contradictory result, the Surety still has a duty for surety obligations even if Principal Obligor bankrupted get their responsibility exempted The fundamental reason for the problem hereinto can be found in Article 567, the Bankruptcy Act including an exceptional provision for the principle of appendant nature in the Civil Law. In other words, the Surety enter into contract which would be appendant to the principal obligation at first, but that contract would be compulsory amended to the indemnity contract without appendant nature by certain policy in the future The condition to maintain Article 567 of Bankruptcy Act valid is observance of the proportionality principle such as legitimacy of the end, appropriateness of the means, proportionality of the legal interest (between the private person's interest being affected by the nation's rule and interest in achieving the proposed end), and finally, minimality of the infringement (of the private person's rights) However, this article make Surety to assume all expenditures for making disorder in the economic society which Principal Obligor or government are mostly in the responsibility. moreover, it make Surety to have supernumerary duty which cause a discriminatory treatment, compared with ordinary one. after all, Article 567, excluding the principleof appendant nature for Surety Obligations and not setting the rational limitation to make the bankruptcy procedure, infringes the proportionality principle and the egalitarian principle Therefore, it is explicitly unreasonable demand for the Surety, contrary to the proportionality principle and the egalitarian principle that even the Principal Obligor is exempted from liability by the bankruptcy procedure but the Surety still has liability under the certain procedure. Accordingly the obligation of Surety shall be exempted by taking only the limited responsibility that the Principal Obligor is actually burdened.

목차 (Table of Contents)

• I. 서
• II. 보증인 보호를 위한 그간의 노력
• 1. 외국의 입법례
• 2. 判例에 의한 保證人 保護
• 3. 금융회사 등에 의한 보증인 보호
• 4. 보증인 보호를 위한 특별법의 주요 내용
• III. 파산자의 면책과 보증인의 책임범위에 대한 고찰
• 1. 현행법상 면책의 효력 범위
• 2. 보증인에 대한 면책 필요성에 대한 고찰
• IV. 맺는말
• 참고문헌
• Abstract