변제자대위에서 제3취득자의 지위와 대위의 부기등기

Abstract

The Korean Civil Code provides for the subrogation of creditors' rights in the event of repayment by a person other than the debtor, with the purpose of securing their right to recover. There are a number of interpretive issues regarding subrogation, including the determination of the status of the third acquisitor and the registration of the subrogation in the register. First, establishing the status of the third acquisitor is a matter of distinguishing between the third acquisitor from a debtor and the third acquisitor from a material guarantor. It's a question of treating the third acquisitor from a material guarantor as the material guarantor. And there are conflicting views about it. The Supreme Court has not explicitly stated, but it is close to the position of the distinction theory, stating that the material guarantor is superior in subrogation to the third acquisitor from the debtor, the surety and the material guarantor are treated without preference to each other, and the third acquisitor from the material guarantor acquires a right of recovery against the debtor. Next, there is the issue of the need for a registration of an additional entry. Depending on the position on establishing third acquisitor’s status, there are different views on whether registration of an additional entry of third acquisitor is necessary. The Supreme Court held that the registration of an additional entry is necessary for the material guarantor to subrogate to the third acquisitor from another material guarantor. According to the Supreme Court, the need for the registration of an additional entry depends on whether the other party is the third acquisitor. In our opinion, it makes sense to treat the third acquisitor from the material guarantor like the material guarantor. Otherwise, the surety or the third acquisitor acquirer from the debtor would benefit by chance. We should discuss removing the registration of an additional entry in the future. In the case of the Japanese Civil Code, the requirement to register was removed through a revision process. During the revision process, the registration of an additional entry was strongly questioned and a consensus was reached. We also need to consider it when revising our civil code.