금전채권자가 채무자를 대위해서 부동산에 관한 공유물분할청구권을 행사할 수 있는지 (대상판결: 대법원 2020. 5. 21. 선고 2018다879 전원합의체 판결)

Abstract

Suppose that an insolvent obligor jointly holds the ownership of the real property. If the monetary obligee applies compulsory execution against the portion, the auction shall be revoked since there shall be no remaining surplus expected, due to the joint keun-mortgage established on the co-owned real property. However, if the obligee applies an execution against the real property as a whole by the method of partition of co-ownership, the obligor shall receive distribution of amount obtained at the auction. This is because the Article of the Civil Act stipulates simultaneous auction of joint mortgages, in which each co-owner shall proportionally share the burden of the secured debt of the joint keun-mortgage. In this case, is the obligee entitled to exercise the obligor’s right to demand partition of co-ownership to preserve his/her own monetary claim? The majority opinion of the full bench of the Supreme Court of Korea declared that the right to demand partition of co-ownership could be an object of a subrogation right of an obligee, but there is no necessity for preservation except for in extremely exceptional cases. This verdict has overturned precedent which had allowed subrogation. On the other hand, the Dissenting Opinion (four dissents) argued that an obligor’s insolvency, in principle, necessitates preservation under the assumption that the right to demand partition of co-ownership can be the object of the subrogation right of an obligee. In addition, it has opposed the need for overturning precedent, by arguing that the obligee should be allowed to exercise the obligor’s right to demand partition of co-ownership for effective execution of the claim. The property right that constitutes an obligor’s executable asset can be, in principle, the object of a subrogation right of an obligee. In addition, the right to decide to form a legal relation, by partition of co-ownership, should not be deemed as an exclusive right. Therefore, as the majority and the dissenting opinion concur, a right to demand partition of co-ownership can be the object of a subrogation right of an obligee. The core question then lies in the necessity for preserving a monetary claim. In deciding this, a theory in which insolvency of an obligor is the sole criteria can be named as the “strict dogma,” whereas one that approves an exception as the “moderated dogma.” So far, the Supreme Court of Korea has allowed the exercise of a subrogation right by a monetary obligee regardless of insolvency of an obligor in some cases. Thus, the ‘strict dogma’ has not been applied in precedents. This, however, does not render a dogma per se meaningless. Consider legal frameworks of preserving chargeable properties such as preservative measure (provisional seizure and provisional disposition for prohibition of disposition) and revocation right of an obligee. It is fair to say the necessity should be judged, for preservation of a subrogation right in pursuit of preserving a monetary claim, by insolvency of an obligor in principle. In such cases, approving certain exceptions when necessary would suffice. The merit of such “moderated dogma” is its flexibility in interpreting all the decision cases by the Supreme Court of Korea from 1960s to present. As for the relevant case, the obligor is insolvent at the closure of pleading of fact-finding proceedings. It can be said that the Dissenting Opinion’s approach is based on a case with the necessity for preservation, while examining a possible circumstance that can be considered otherwise. This corresponds to the “moderated dogma.” The Majority Opinion denied the necessity for preservation because a monetary obligee’s exercising a subrogation right to demand partition of co-ownership 1) has no direct relevance to chargeable properties; 2) unfairly intervenes in the obligor’s free property management; and 3) causes other legal problems. It is certain that the majority opinion, in accordance with precedent, rejected the “strict dogma.” It is not certain, however, whether they intended to reject the “moderated dogma” as well. The relevant judgment directly declared law of principles on whether a monetary obligee is entitled to exercise a subrogation right to demand partition of co-ownership. The decision hereby has 1) explained the stakeholders’ legal relations surrounding co-ownership; and 2) let the partition of co-ownership apply according to its initial purpose. Nevertheless, the Court’s judgment did not provide a clear criterion neither on the effect of an obligor’s insolvency as the prerequisite for an obligee’s exercising a subrogation right, nor on its position in terms of the procedural law. As results, the relevant judgment has left room for questions as follows: 1) once an obligor’s insolvency is recognized, does it lead to a transition of the onus of proof regarding the necessity of preservation?; 2) what in specific does it mean by “extremely exceptional cases” in which the exercise of a subrogation right to demand partition of co-ownership?; and 3) what is the relation between an obligor’s insolvency as the prerequisite for the exercise of a subrogation right of an obligee and of an obligee’s right of revocation?