우리나라 채권자대위권의 직접청구권화 문제

Abstract

Article 404 of Korean Civil Code does not prescribe how to exercise the obligee's right of subrogation except that the obligee cannot exercise the rights before the claim does not become due. Concerning the method of exercising the claim, the majority of authors think that the obligee could claim directly to the third obligor and receive the latter's reimbursement, by extension he could get a preferential satisfaction through the offset. A part of authors think that the obligee could not accomplish his purpose of exercise of the obligee's right, when the obligor refuse the receipt to the third obligor's reimbursement or he could not receive reimbursement, if the obligee's direct claim to the third obligor should not be permitted, The other part of authors think that the obligee's right of subrogation contains the power of the direct claim to the third obligor. The purpose oof the obligee's right of subrogation is to protect the general security, the obligee could achieve the purpose through the compulsory execution when the obligor refuse the receipt to the third obligor's reimbursement or he could not receive the reimbursement, And the obligee's direct claim to the third obligor could be useless because the obligor may receive directly the third obligor's reimbursement. The latter should fulfil the obligations to the obligee under risk of a debt not owed. Even if the subject of the obligee's obligation to the obligor and that of he obligor's obligation to the obligee are of same kind and become due, the obligee cannot make a setoff, because the obligee have received the reimbursement of the third obligor in order to preserve the general security and the nature of the obligations cannot be permitted to setoff. The fact that the obligee may claim directly to the third obligor and receive the latter's reimbursement, by extension he could get a preferential satisfaction through the offset, it means that the obligee does not exercise the obligor's right of subrogation but exercises his own direct right to the third obligor, which is regulated by some special particular acts, and it means that the direct claim is generalized by means of the obligee's right of subrogation as a conservative procedure, and it means that the latter is misused. De lege ferenda, someone is saying the article Article 404 of Korean Civil Code should be to amended in order to recognize the obligee's direct claims to the third obligor, but we think that it is not just that the direct claim is generalized and it seems that the obligee exercising the right of subrogation is enough to claim for the third obligor to fulfil the obligations to the obligor.