채권자의 보증인에 대한 배려의무에 관한 서설 -독일민법을 중심으로 한 입법예-

Abstract

The aim of this article is to gather from the foreign laws, old and

modern, and analyse the materials on the problem, whether and in what

scale the duty of care of a creditor for a guarantor is to be recognized,

and to provide some background knowledge which might be useful when

an opportunity to think about the possibilty of the legislation about this

delicate problem is given. The range of the materials gathered here

reaches from the Roman Law to the recently enacted Civil Code of the

Netherlands, but the stress is laid upon the debates in the course of

making the German Civil Code and thereafter its interpretations in

Germany by the scholars and the courts.

As a result, some points can be accentuated:

1. The attitudes of the foreign laws to the problem vary very much,

from the whole negation of such duty to the ad hoc recoginition of

the care duty of the specific kind, e.g. the duty of information on the

default of the obligator, to the full-scale admission of the duty.

2. The fact that a guarantee contract gives the creditor only the right

to claim the guarantor does not necessarily exclude the possibility to

recognize this kind of duty. The problem is a matter of the

interpretation of the guarantee contract.

3. We need not to make a decision of all or nothing. If the interests of

a creditor regarding the security of his claims by a guarantee

contract may be assumed to be harmed by the implimentation of such

far-fetched duty of care, then the choice can be made as such that

we accept only restricted contents of the care duty only for some

kinds of guarantee, e.g. that of the private person for non-commercial

purpose and so on.