채권자대위소송에서의 공동소송참가

Abstract

It is stated that the right of subrogation by the obligee is in essence the system that the subrogating obligee preserves nonexempt property of the obligor and prepares for execution. Subrogating obligee can demand the third obligor to directly deliver the money which is the subject matter of the subrogated right to the subrogating obligee. Based on this, the subrogating obligee can collect claims without obtaining the title of debt through offsetting the obligation to return received money to the obligor by the preserved claim(prioritized payment). So it has been frequently used by subrogating obligee. But it is pointed out that current subrogation action lacks consideration to the status of the obligor and another obligee such as their opportunity to participate in the proceedings is not guaranteed regardless that the effect of judgment reaches them. In 2015, Supreme Court of Korea(SCK) rendered its first decision on admitting the standing of intervention as a joint litigant of other obligees in subrogation action. This decision has a valuable practical implication because it deals with the issues about right of action of other obligees in subrogation action. First, this article examines briefly whole progress of a case and conducts a legal analysis whether theory of the specified partial claims can be applied when subrogating obligee claims only part of subrogated right. Second, this article examines a issue of standing of obligor and other obligees that is necessary for intervention as a joint litigant. Third, this article critically examines some theoretical problems about a issue of necessity for unified decision through separated cases: 1) amount of claim[claim of plaintiff(subrogating obligee) and intervenor (another obligee)] is more than subrogated claim, 2) amount of claim is lesser than subrogated claim. Finally, this article offers suggestions for more economic, unified and rational method of dispute resolution among parties of subrogation action.