전부명령의 재고(再考) - 용어, 요건 및 효과를 중심으로 -

Abstract

An assignment order is a decision of an enforcement court that transfers a debtor's monetary claim against a third party to the judgment creditor in lieu of payment of the enforcement debt. The status of the debtor and the third party under an assignment order is the same as in the case of an assignment of monetary claim, and the judgment creditor that receives an assignment order enjoys the effect of a de facto priority payment. Assignment orders have a wide range of applications under the Korean Civil Execution Act and are used more frequently compared to similar systems in Germany and Japan. Since assignment orders are an exception to the principle of equality among creditors, it is advisable to be strict about their requirements. In practice, assignment orders are rare because many debtors who enter the enforcement phase are already in the foreclosure contest phase, and strictly enforcing the requirements for an assignment order would further narrow its scope. However, since an assignment order is a court-ordered transfer of a claim, as opposed to an assignment of a claim based on an agreement between the parties, and since it grants the judgment creditor the benefit of having the attached claim exclusively attributed to them, it is necessary to carefully examine whether the requirements of an assignment order are consistent with its purpose and objectives when determining those requirements. In terms of terminology related to assignment orders, the word ‘order’ may be confusing, so consideration could be given to using the term ‘determination’ instead. It would be more appropriate to consistently refer to the debtor's claim against a third party as an ‘attached claim’. Next, with respect to the eligibility for an assignment order, it is reasonable to require that the future claim be identifiable, but there is room for reconsideration with respect to requiring that the claim be likely to arise in the near future. Regarding the requirements for an assignment order, there is a view that transferability need not be a requirement at the attachment stage, which precedes the assignment order, and that the transferability of the attached claim should be determined only at the stage of reviewing the requirements for the assignment order. However, considering factors such as the stability of the claim enforcement process, the expectations of the judgment creditor, and the public's trust in the enforcement process, this argument is not valid. Finally, with respect to the effect of an assignment order, in the event of a conflict between the real subrogation of a hypothec and an assignment order, the view that the assignment order creditor prevails if the subrogated party or hypothecary right holder has not attached the assigned claim is persuasive, and this will require further discussion. Moreover, based on the position taken by precedents, after the subrogated creditor notifies the debtor or the debtor becomes aware of the exercise of the subrogation right, the assignment order for the subrogated claim is invalid. This seems to run counter to the aim of promoting stability in the enforcement process and requires deeper consideration.