채권자대위권의 전용현상에 대한 검토

Abstract

The subrogation right of the obligee is a right that obligee executes instead of the debtor in order to preserve own credit. Such subrogation right of the obligee was allegedly originated from indirect right to bring an action in a court in France. It was introduced to complement any defects of law as France had no compulsory execution system. Accordingly, the subrogation right of the obligee is usually discussed in link with the complementation of compulsory execution and preservation of liability property. However, the subrogation right of the obligee is not only operated to preserve liability property, but also used as preservation of specific credit or de facto preferential payment. The fact that the subrogation right of the obligee system is used other than the traditional function such as joint security or preservation of liability property demonstrates a new interpretation to cope with the periodic change or to comply with realistic necessity. Meanwhile, the reason why the obligee executes the subrogation right of the obligee is to get satisfaction on the own credit. While it is not possible to get direct credit satisfaction through the execution of subrogation right of the obligee, such is executed as a preliminary measure to get credit satisfaction ultimately with proper procedure. If so, the subrogation right of the obligee must be used in various means to secure satiating potency of credit. Accordingly, it is necessary for the subrogation right of the obligee to be used as de facto preferential payment or specific credit preservation to secure credit satisfaction possibility. The subrogation right of the obligee has already been used in many ways to secure credit satisfaction possibility. When such reality is considered, it seems no need to link the subrogation right of the obligee with liability property preservation or complementation of compulsory execution. Rather, it seems more desirable to explain it as securing the obligee’s satiating potency in a broad sense. If so, it can explain the reality of extensive use such as preferential payment or specific credit preservation function, as well as traditional liability property preservation function. In the subrogation right of the obligee, the right which the obligee intends to execute is the right of the debtor. Thus, the essence is the intervention of property management of the obligee. Therefore, it is valid to regard the legal character of the subrogation right of the obligee as court receivership. Even though such system is widely used as preferential payment or specific credit preservation to cope with the needs of reality, the essence of the subrogation right of the obligee remains unchanged.