제3취득자의 변제자 대위

Abstract

The origin of subrogation by person who has performed obligation is the two roman law theories of beneficium cedendarum actionum and ius vedendi. In Ancien droit subrogation has been devised from combination of the common character of the above two roman theories. Article 482 Clause 2 of the Korean Civil Code about relations among subrogators goes back to Article 501 of the Japanese Civil Code that is peculiar in comparative laws and has some omission and flaw in interpreting the above clause. The author examines the scope of a third party purchaser provided from Paragraph 1, 2, and 3 of the above same Clause, and the difference between a third party purchaser from debtor and one from a person who pledged one’s property to secure another’s obligation, and supplementary registration of subrogation provided from Paragraph 1 and 5 of the above same Clause. The conclusion can be summarized as follows. Scope of a third party is not same area of scope of the definition stipulated in Article 364 of the Korean Civil Code. A third party purchaser of subrogation includes mortgage right holder except mortgagee next in priority. A third party purchaser of subrogation means only one from debtor. A third party from a person who pledged one’s property to secure another’s obligation is deemed the former.