초록/요약

The claim in kind refers to a claim that has defined the subject of a claim only by class. In the claim, in order for the obligor to fulfill its obligation, it is necessary to go through the procedure of selecting the things as much as the quantity to be fulfilled among the goods belonging to the defined class, and this is called the specification of the claim in kind. Once a thing to be fulfilled is specified, then when the thing is destructed, the obligor is not obligated to procure and perform the other thing. Therefore, the point at which the specification is established is important for the obligor and obligee. If the quality of the kind is different each other, the obligor must select and provide things of suitable quality. Article 375 (1) of the Civil Act stipulates “where the quality of the claim’s subject cannot be determined by the nature of the juristic act or by the intention of the parties, the obligor is bound to perform with a thing of medium quality.” If the obligor selects a thing of inadequate quality, no specifying occurs. Accordingly, the obligee may refuse to accept the things provided by the obligor, and even if it has been received, the obligee may claim default rule or warranty. Article 375 of the Civil Act stipulates that “if the obligor has completed all acts that are necessary for the performance” or if the obligor “has with the consent of the obligee designated a thing to be performed”, such thing shall thenceforth constitute the subject matter of the claim. When is the point at which the specifying occurs, “if the obligor has completed all acts that are necessary for the performance”? In the debt to be brought, a specification occurs when the obligor separates the goods to be fulfilled, takes it to the place of performance, and puts it in a state where the obligee can receive it. A debt to be collected is specified when the obligor prepares to perform the obligation at any time when obligee collects, and separates the goods to be performed. As for the debt to be shipped, the point of time being specified is different between the one that has the nature of a debt to be collected and the other one that has the nature of the debt to be brought. In the former, the specification occurs when the obligor separates the object to be fulfilled and ships it to the place of fulfillment through the transport agency. In the latter, the identification takes place at the same time as the debt to be brought. When the obligor “has with the consent of the obligee designated a thing to be performed”, the specification takes place even before completing the actions necessary for the performance. Here, “the consent of the obligee” grants the obligor the authority to designate and specify the subject to be performed even before completing the act necessary for performance. The supreme court has said that if the obligor does not exercise the right to designate, the right to designate is transferred to the obligee. The judicial precedent applies the provisions on “Transfer of Right of Option(Article 381)” of alternative claims to claims in kind. However, since claims in kind and alternative claims are different in the legal nature, the provisions on transfer of right of option should not be applied to claims in kind. Ultimately, if the obligor does not exercise the right of designation and does not perform the actions necessary to fulfill the obligation, the obligee has no choice but to hold the obligor liable for default.