원문정보
A Study on Competition between the Cumulative Assumption of debt and the Assignment of Claim
초록
영어
When there is competition between the Assumption of debt and the assignment of claim, it is possible to apply the Assumption of debt to the creditor or any third party together with the assignment of claim. Specifically speaking, the following cases can be applied; (1) When the grantee of bonds fails to acquire the resisting conditions even after the agreement for the assignment of claim is concluded and the guarantor of debts makes a payment prior to its due date after the agreement for the Cumulative Assumption of debt is concluded (the agreement for the assignment of claim - the agreement for the Assumption of debt - payment prior to the due date - preparation of resisting conditions), (2) When the payment is made prior to the due date without the preparation of resisting conditions for the assignment of claim even after the agreement for the assignment of claim is concluded after the conclusion of the agreement for the Assumption of debt (the agreement for the Assumption of debt - the agreement for the assignment of claim - payment prior to the due date - preparation of resisting conditions), (3) When the payment is made by the guarantor of debts prior to the due date even before the assignment of claim due to the agreement for the Assumption of debt (the agreement for the Assumption of debt - payment prior to the due date - the agreement for the assignment of claim - preparation of resisting conditions). In such cases, there is competition between the Assumption of debt and the assignment of claim. According to the current civil laws, the status of the guarantor of debts, who does not have a standardized way of proof, becomes unstable. As a result, it is necessary to protect the guarantor of debts. Therefore, it is thought that the following conditions might be required; (1) The resisting conditions possessed by the guarantor of debts regarding creditors in order to notify creditors of debtors, (2) The resisting conditions for the reversion of debts in terms of the preferential recovery of bonds through the effective argument or setoff for the payment made by the guarantor of debts to creditors in regard to the relationship with any third party, including the grantee of bonds and the execution creditors.
목차
Ⅱ. 채권양도가 선행하는 경우
1. 채무인수계약 체결 전의 채권양도의 대항요건구비
2. 채무인수계약체결 후 기한전 변제 전의 대항요건구비
3. 채무인수계약체결 후 기한전 변제 후의 대항요건구비
Ⅲ. 채무인수가 선행하는 경우
1. 채권양도의 대항요건구비 후의 인수인의 기한전 변제
2. 채권양도의 대항요건구비 전의 인수인의 기한전 변제
3. 채권양도계약 체결 전의 기한전 변제
Ⅳ. 채무인수의 대항요건의 가능성
1. 유형분석에 따른 문제인식
2. 현행민법의 현황
3. 채무인수의 대항요건의 도입가능성
Ⅴ. 결론
참고문헌
Abstract