채권자대위소송의 실질적 보장과 중복소송 = Substantial Protection for Subrogation Action by Creditor and Duplicative Litigation

다국어 초록 (Multilingual Abstract)

There is a dispute about whether or not a creditor should be included in the concept of third party standing. The general view and the case law have approved a statutory standing over the creditor and consequently, the requirements for the subrogation action should be examined at the level of litigation requirements and the lawsuit has been dismissed without considering the merits of the claim based on the ground of duplicative litigation. However, according to a literal interpretation, a party in subrogation action asserts his or her own rights allowed under the civil law which is a substantive law. Therefore, as to a legal relationship created by a debtor who is the subject of the right, a creditor is a person who files a lawsuit for his or her own interest. In other words, when both the subject of the right and creditor possess the right to perform a litigation, I think it is improper to interpret the creditor as a litigant with statutory standing. Also, an interpretation separated from the substantive law in interpretation of the subrogation action seems to be too artful.
In addition, the interpretation under the case law seems to be unfair compare to creditor’s right of revocation, which is also a substantive right. In case of creditor’s right of revocation, the court took a position that a lawsuit filed by another creditor while a creditor’s revocation action is pending in court is not a duplicative litigation because the creditor can separately assert his or her own right. Also, in judging litigation requirements, the court abusively and broadly applied the general principle to avoid duplicative litigation for the procedural stability.
Furthermore, allowing prohibitive effect on subrogation action on the ground of duplicative litigation unreasonably regulates the constitutional right of trial by the court’s interpretation. That is, the court’s dismissal of the case without considering the merits of the claim, even if the creditor in subrogation action also has a right to file a lawsuit and develop a trial by actively proving his or her own right in a trial on the merits of a case, is unreasonably restricting a right to an action by the court’s interpretation. Therefore, the creditor in a subrogation action by creditor should be understood as a litigant with an independent standing rather than substituting the debtor.

다국어 초록 (Multilingual Abstract)

There is a dispute about whether or not a creditor should be included in the concept of third party standing. The general view and the case law have approved a statutory standing over the creditor and consequently, the requirements for the subrogation action should be examined at the level of litigation requirements and the lawsuit has been dismissed without considering the merits of the claim based on the ground of duplicative litigation. However, according to a literal interpretation, a party in subrogation action asserts his or her own rights allowed under the civil law which is a substantive law. Therefore, as to a legal relationship created by a debtor who is the subject of the right, a creditor is a person who files a lawsuit for his or her own interest. In other words, when both the subject of the right and creditor possess the right to perform a litigation, I think it is improper to interpret the creditor as a litigant with statutory standing. Also, an interpretation separated from the substantive law in interpretation of the subrogation action seems to be too artful.
In addition, the interpretation under the case law seems to be unfair compare to creditor’s right of revocation, which is also a substantive right. In case of creditor’s right of revocation, the court took a position that a lawsuit filed by another creditor while a creditor’s revocation action is pending in court is not a duplicative litigation because the creditor can separately assert his or her own right. Also, in judging litigation requirements, the court abusively and broadly applied the general principle to avoid duplicative litigation for the procedural stability.
Furthermore, allowing prohibitive effect on subrogation action on the ground of duplicative litigation unreasonably regulates the constitutional right of trial by the court’s interpretation. That is, the court’s dismissal of the case without considering the merits of the claim, even if the creditor in subrogation action also has a right to file a lawsuit and develop a trial by actively proving his or her own right in a trial on the merits of a case, is unreasonably restricting a right to an action by the court’s interpretation. Therefore, the creditor in a subrogation action by creditor should be understood as a litigant with an independent standing rather than substituting the debtor.

참고문헌 (Reference)

1 김형배, "채권총론" 박영사 1998

2 호문혁, "채권자대위소송에 있어서 피보전채권과 당사자적격. in: 민사판례연구(Ⅻ)" 박영사 1991

3 박찬주, "채권자대위소송에 대한 새로운 이해" 대한변호사협회 (367) : 59-83, 2007

4 이동률, "채권자대위소송과 법정소송담당. in: 민사소송Ⅱ" 한국민사소송법학회 1999

5 윤용덕, "채권자대위권의 적용범위에 대한 검토" 한국비교사법학회 3 (3): 1996

6 김상수, "중복된 소제기의 금지에 관한 연구" 대한변호사협회 (372) : 113-129, 2007

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19 Blomeyer, "Zivilprozeßrecht, 2. Aufl." 1985

20 Rosenberg, "Zivilprozessrecht, 16. Aufl." 2004

21 Stein, "Zivilprozessordnung, 22. Aufl., Band 1" 2003

22 Thomas, "ZPO, 19. Aufl." 1995