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obligors reach the rest of obligors (CC Art. 440), it provides absolute effects for many
circumstances (CC Art. 434 to Art.439).
Among such circumstances, there is no objection as to granting absolute effects
for setoff (CC Art. 436 (1)) and merger (CC Art. 438). In addition, there is an opinion
proposed that there is no necessity to substantially reform the contents of current law
as to the rest of circumstances.
On the other hand, it is pointed out that while joint and several obligations have the
function of personal security through dispersing the risk of insolvency of an obligor, it
is against intention of general obligees that there are many occasions which create
absolute effects and accordingly weakens the function of security of joint and several
obligations. In addition, case law and theories interpret that a part of provisions on
circumstances causing absolute effects is not applicable to the obligation to pay
damages which joint tort feasors owe (CC Art. 719) even though it is also regarded as
joint and several liability under the law.
Based on these discussions, how should we consider the necessity to review
circumstances causing absolute effects under the current law?
[Note] In the following, we discuss among the circumstances causing absolute effects under the
current law, request for performance (CC Art. 434), release of an obligation (CC Art. 437),
novation (CC Art. 435), and completion of prescription (CC Art. 439) individually (below (a) to
(d)). The purpose of this discussion is to take an overall view of the system design if we adopt
a view that the circumstances causing absolute effects should be reduced, in order for the
reference of the discussion on the necessity to review the circumstances causing absolute effects
under the current law.
In addition, we discuss invocation of the right to setoff by other joint and several obligors (CC
Art. 436 (2)) and commencement of bankruptcy procedures (CC Art. 441) in this section
because they have the common aspects with the above issues with respect to treatment of a
circumstance accruing to one of joint and several obligors (below (e) and (f)).
(a) Request for performance (CC Art. 434)
Article 434 of the current Civil Code provides absolute effects with respect to a
request for performance made to one of joint and several obligors. While this
provision is advantageous to the obligee because it functions to the direction to
strengthening the security function of joint and several obligations, it is also pointed
that there is a thread to give unexpected damage to joint and several obligors who did
not receive such request. Accordingly, several views are proposed such as a view
that a request of performance should not cause absolute effects or a view that the
occasions that cause absolute effects should be limited.