추심의 소와 중복소송에 관한 검토 - 대법원 2013. 12. 18. 선고 2013다202120 전원합의체판결을 중심으로 -

Abstract

As the trial of an execution court which gives an execution creditor the authority to which a collection command promotes the grant which is the purpose of the seized claim from a third debtor. It is a kind of a redeployment command. In order for a creditor to make the debt by collection command carry out, the lawsuit which makes the 3rd obligor a defendant and it calls it a lawsuit. Even if the lawsuit of the collection which was seized with the lawsuit of the fulfillment which the obligor raised previously against the third debtor, and the creditor raised later against the 3rd obligor differs in the party concerned, substantially as the same incident It receives whether it is corresponding to the lawsuit with which the next lawsuit overlapped, and bisects the judicial precedent of the Supreme Court by the majority opinion and a dissenting opinion. It can seize, also when the lawsuit of the fulfillment which the obligor raised against the third debtor follows the court, and the creditor can raise the lawsuit of the collection which charges fulfillment of the claim seized against the 3rd obligor, And the lawsuit of the collection which was seized against the 3rd obligor and the creditor raised approves of the conclusion of the majority opinion of not corresponding to institution of the duplicate lawsuit which Article 259 of the Code of Civil Procedure forbids by the relation to the lawsuit of the fulfillment which the obligor raised. However, a writer is a position in which the plaintiff in the fulfillment lawsuit of the creditor and obligor of a collection lawsuit against the 3rd obligor cannot be called duplication lawsuit as the party concerned who is not the same.