양도담보에 대한 물상대위의 인정 여부

Abstract

The pledgee or mortgagee may also exercise his pledge or mortgage against money or other things which the pledger or mortgagor is entitled to receive by reason of the loss, damage or public expropriation of the thing pledged or mortgaged. In such case, an attachment must be levied thereon prior to their payment or delivery(Art. 342, 370 of the Korean Civil Act). In this case, the above right which the pledgee or mortgagee has is called as the right of subrogation. Sometimes a debtor transfers his ownership on a secured property to his creditor for the purpose of security instead of establishing a pledge or mortgage, when he loans some money from a creditor. This relation is called as Yangdodambo(security by means of transfer) in Korea. Concerning this type of security arise many problems, because it is not regulated by the existing laws. One of them is whether the Art. of 342 may be analogized to Yangdodambo. Recently one Supreme Court decision(2009Da37106 Decided Nov. 26, 2009) pronounced a positive attitude on this problem. This decision concludes that the person who holds a right to movables transferred for security may also exercise the right of subrogation on the right to claim fire insurance money which the person who establishes a right to movables transferred for security has acquired, futhermore the person who establishes a right to movables transferred for security has the insured interest in concluding a fire insurance contract on the secured property. The purpose of this theses is to commentate this Supreme Court decision. Concerning the legal nature of Yangdodambo, ‘the theory of security right’ and ‘the theory of transferring ownership in trust’ has been debated from long ago. What attitude the judicial precedent of Supreme Court has taken has also been debated. But there is no debate at least in one thing that as far as Yangdodambo on movables our Supreme Court has consistently taken ‘the theory of transferring ownership in trust’. In case that the above attitude of our Supreme Court is taken, only the person who holds a right to property transferred for security externally becomes the owner of the secured property. If so, from a logical point of view, there is difficulty to admit the right of subrogation to that person. The reason is that the right of subrogation may be entitled only to the person who holds a security right, not to the owner. On the other hand, arises another question whether the right to claim accident insurance may become the object of the right of subrogation. If we take a stand point of broad view that the right of subrogation may be admitted when the transformed thing is economically and socially identified as same as the original thing, then the right to claim accident insurance may become the object of the right of subrogation. Furthermore arises the question whether the above conclusion may be analogized to Yangdodambo. The very core of that question is whether the person who establishes a right to property transferred for security has the insured interest in concluding an accident insurance contract on the secured property. If ‘the theory of transferring ownership in trust’ which has been taken by our Supreme Court is carried through to the end, there exists still difficulty to recognize the insured interest to the person who establishes a right to property transferred for security. In short, when ‘the theory of transferring ownership in trust’ such as our Supreme Court has taken is chosen, some theoretical difficulties are attended in admitting the right of subrogation to the person who holds a right to property transferred for security and recognizing the insured interest to that person.