채권자대위권에 관한 일본 민법 개정의 시사점과 민사소송법적 쟁점

Abstract

In Japan recently a draft for the Civil Code (law of obligations) Reform was submitted. Article 423-5 and Article 423-6 in the draft are meaningful in connection with the civil litigation based on the obligee’s right of subrogation. According to the Article 423-5 the obligor’s disposal of the right to be subrogated is not restricted after obligee’s exercising of the right of subrogation, and according to the Article 423-6 the obligee exercising the right of subrogation with civil litigation should notify the obligor. This paper introduces the contents of draft for the Japanese Civil Code about rights of subrogation of the obligee and the academic discussions in Japan and examines the influences of the interpretation of the civil litigation based on the obligee’s right of subrogation in Korea. According to the Article 423-5 of the draft the obligor has the standing to sue for the right to be subrogated, because the obligor’s disposition of the right to be subrogated is not restricted after obligee’s exercising of the right of subrogation, and the standing to sue of the obligee coexists with the standing to sue of the obligor for the same right. Therefore previous discussions about the standing to sue of the obligor in Japan will change. Unlike Japan, according to Article 405 of our Civil Code the obligor’s disposal of the right to be subrogated is prohibited after obligee’s exercising of the right of subrogation, but the existing dominant opinion of the academic world of civil procedure law in Korea insists the standing to sue of the obligor for the right to be subrogated after obligee’s exercising of the right of subrogation. As a result, our interpretation on the issues related with the standing to sue of the obligor in the civil litigation based on the obligee’s subrogation, such as duplicate lawsuits and intervention, became similar with the interpretation of the draft for the Civil Code in Japan. However, the our dominant opinion should be reviewed for the theoretical consistency with the interpretation of Article 405 of our Civil Code. The litigation notice of the draft for the Japanese Civil Code need to be institutionalized for the guarantee of the obligor’s right to intervene in the lawsuit based on the obligee’s subrogation and for the device that can make the effect of judgment go to the obligor.