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초록

영어

Recently, how to modernize and improve suretyship system have been actively under discussion all over the world. There is an arising concern in Korea that the joint and several suretyship system should be subject to reform. One with money to lend, goods to sells or services to render may have doubts about a prospective debtor's ability to pay. The prospective creditor can reduce its risk by requiring some sort of security. In America One form of security is the Article 9 security interest in the in the debtor's goods. Another type of security takes the form of joining a third person on the debtor's obligation. Structurally suretyship is a three party relationship involving the creditor, principal debtor and the surety. Occasionally surety includes guarantor. The surety undertakes to 'back up' the performance of the debtor and thereby gives the creditor the added assurance of having another party to the obligation. It is common practice for a surety to appear on a note either as a co-maker or as a endorser. As between the surety and the debtor, it is clear that the debtor has the primary obligation to pay the debt. Mostly, perhaps exclusively the parties are co-signers of notes in cases where neither party is an accommodation party for the other -because each receives a direct benefit from the loan. In American jurisprudence, Chapter 1 of Restatement contains nosubstantive rules of suretyship and guaranty law. Nonetheless, it may well be the most important chapter in the Restatement. For it is this chapter that sets out the ground rules for the application of the substantive rules that appear in subsequent chapters. The substantive rules of suretyship and guaranty law are of little use without these ground rules. Sections 1 and 2 of the Restatement are the foundation upon which the substantive principles of suretyship and guaranty law are built. These sections determine the range of situations to which those substantive rules apply. The importance of these rules of scope should not be underestimated. The range of situations to which the law of suretyship and guaranty applies is often misunderstood, with the result that, in many transactions, the application of principles that protect the interests of secondary obligors(the surety, the guarantor) with respect to both debtors(principal obligors) and creditors (obligees) is unexpected by some or all of the parties. In Korea, traditionally a joint and several suretyship shall mean the right in rem over a specific property so as to recover creditor's claims, and should notify the public of its existence and priority. In conclusion, there is an amounting need for suretyship system, which could modify the rigidity of the current regime on suretyship system in Korea. By doing so, a joint and several suretyship system would increase the availability of credit and improve the terms of the credit. However, the modernization and diversification of the a joint and several suretyship system in Korea should be promoted so as to implement guaranty system.

목차

I. 서론
 II. 영국의 보증제도
 III. 미국의 보증제도
 IV. 정리 및 결론
 참고문헌
 Abstract

키워드

물적담보 인적담보 보증인 채권자 채무자 보증계약 담보계약 사전구상권 Real security Personal security Guarantor Creditor Principal Debtor Suretyship Guaranty Exoneration

저자

• 김용길 [ Kim, Yong-Kil | 원광대학교 법학전문대학원 교수, 법학박사 ]
• 윤순익 [ Yoon, Sun-Ig | 영국 The University of Sheffield, 법학박사과정 수료 ]

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