민법개정안의 보증조항에 대하여 -개정취지와 해석론-

Abstract

The preparatory work for the amendment to the first three Books of the

Korean Civil Code (KCC) began on February 1, 1999, when the Special

Committee for the Civil Code Amendment (Committee) was established as a

subcommittee of the Legal Advisory Commission in the Ministry of Justice. The

Committee recently wrapped up its discussions, and the final results of the work

became public as a Preliminary Announcement of Legislation in June this year.

In this article the author tries to articulate the reasons for the revision proposals

on the guaranty provisions and to identify and, in some cases, answer several of

the problems arising from the provisions.

A guaranty (Bürgschaft) is the crown of personal surety in Korea, serving a

distinguished role in financial practices. If you look into the reality of guaranty

transactions, however, in many cases the guarantor signs the guaranty out of

personal relationship, gratuitously and without due deliberation of the legal

consequences thereof. In practice, guaranties for the benefit of financial

institutions have been made in the form of a comprehensive keun-guaranty,

which covers any of the obligor's obligations arising during the considerable

duration, without specifying the scope of guaranteed obligations. In various cases,

the guarantors were held liable as such type of comprehensive keun-guaranty was

basically found valid by courts. In particular, the financial crisis since the end of

1997 has awakened the need to mitigate the overly strict guarantee liabilities.