제한되는 채권 처분의 범위 및 판단기준에 관한 검토 - 대법원 2012. 5. 17. 선고 2011다87235 판결 관련 채권자대위권행사에 의한 처분금지효를 중심으로 -

Abstract

In the case that the disposal of credit is restricted for some purpose, it is important that establishing the standard of judgment of creditor’s restricted disposal. In this regard, this paper will review the definition of creditor’s restricted disposal in another case related to the restriction of credit disposal such as provisional attachment or attachment against credit, credit transfer and injunction for prohibition of disposal. In addition, this paper inter alia will review the case of Supreme Court on May 17, 2012(No. 2011Da87235 Unanimously Agreed Verdict) which recently changed its opinion in a case where the contract between the obligor and his/her obligor lost validity after the notice of the exercise of the ‘obligee’s right of subrogation to obligator’, due to the obligor’s non-performance of his contractual obligation. In this case, the Korea Supreme Court ruled that the obligor’s termination shall not be determined as a ‘disposal’. This case is based on the Article 405 (2) which restricts the obligor’s right to dispose the right which is the subject of an ‘obligee’s right of subrogation to obligor’. The Korea Supreme Court decided in such way because (i) the obligor’s non-performance of a contractual obligation itself cannot be determined as an active action which dismantles the credit; and (ii) legal termination is a proper lawful measure which the obligor can take against his/her obligor’s objective non-performance of its contractual obligation. However, it does not definitely declare the meaning of ‘Disposal’ in the Korean Civil Code §405. Therefore, we should examine it on the legal definition of disposal of obligor in the light of legislative purposes and effectiveness of subrogation right of obligee. There are some disposals that can be decided as the restricted disposal by obligor under the Article 405 (2) even though the disposal is made by obligor’s obligor. Therefore, this paper tries to categorize the new types of restricted creditor’s disposal under the Article 405 (2). In addition this paper tries to make a proposal new theory of legislation to overcome these problems.