추심소송과 경합소송

Abstract

With an order for seizure against a monetary claim issued by the court of execution, though the obligee shall lost the power to collect actually and to dispose the seized claim, this restriction is relative. Therefore the obligee can bring an action for payment of the claim against the third obligee irrespective of the seizure order. Even after the collection order, because there is no reason that the status of the obligee should be changed, the obligee still can file a lawsuit against the third obligee and carry out the lawsuit as well. Now many execution creditors and the obligee can file many lawsuits against the third obligee based on the same claim. And many lawsuits competing like this, inevitably cause problems on the matters like double lawsuits, prohibition of the same lawsuit and res judicata. However because, one hand, the purposes of double lawsuits, prohibition of the same lawsuit, res judicata are different each other, on the other hand, though the obligee can bring lawsuit, res judicata of the obligee's lawsuit could be restricted by the seizure order for prohibition of disposition, the results of the application are not always equal. First, concerning the double lawsuits, when an execution creditor's lawsuit is filed before that of obligee, each lawsuit from the obligee and other execution creditors fall under the double lawsuits, but if the obligee's lawsuit is filed first, the result is reversed. Second, about the prohibition of the same lawsuit, withdrawal of the lawsuit, during the lawsuit of collection after the final judgment on the merits of the case, lawsuits of the obligee and other execution creditors are rendered. But because the obligee's withdrawal is the behaviour is the harm to the execution creditor, irrespective of the obligee's withdrawal, another lawsuit can be brought by an execution creditor. Finally, concerning res judicata, a final and conclusive decision is made in the execution creditor's lawsuit, it is binding on the obligee and other execution creditors who ordered to join the lawsuit. But the decision made by the obligee is binding on the execution creditors, as long as the decision is advantageous.