채권자 대위권 행사와 압류 및 전부명령의 관계- 대법원 2016. 8. 29. 선고 2015다236547판결 -

Abstract

In this judgment, if a subrogation lawsuit is filed and the subrogation creditor notifies the debtor of the exercise of the subrogation right, or the debtor becomes aware of this, in accordance with Article 405 (2) of the Civil Act, a disposition prohibition effect occurs in which the debtor cannot dispose of the subrogation claims. The filing has something in common with the collection lawsuit, and Article 229, Paragraph 5 of the Civil Execution Act on the contention of the foreclosure against the prohibition of disposition in order to guarantee the opportunity for the subrogated creditor to receive reimbursement of the confiscated claims through seizure of the subrogated claims in the future. An assignment order of other creditors issued thereafter are invalid. In order to arrive at this conclusion, it is premised that the above disposition ban affects not only the debtor and the third debtor, but also the third party, the seizure and all order holders, that is, that it can be countered. However, even if the debtor knows about the exercise of the subrogation right of the creditor, the above-described disposition prohibition effect occurs, and the disclosure function is very poor for a third party to know the debtor's perception. In addition, since there is a risk of claiming false facts about the point of recognition, such as the transfer of creditors and debtors, it is considered that the above disposition prohibition effect does not fall on the right to seize and the right to an assignment order, which are well-intentioned third parties. Even if the above disposition prohibition effect extends to the right to seizure and order in full in good faith, the subrogation authority shall, in the case of other seizure or seizure right, request for seizure, seizure, or distribution of the subrogated claims based on the subrogated claims, in addition to exercising the subrogation right In light of the facts, the above disposition prohibition effect and subrogation lawsuit cannot be regarded as similar to the seizure of Article 229 (5) of the Civil Execution Act. Furthermore, considering that creditors can participate in dividends only by seizure if there is another seizure right, even if seizure or seizure of the subrogated claims prior to the exercise of the subrogation rights, there is no other damage other than the additional execution cost. On the other hand, it is very difficult for a person who has a full order to know about the occurrence of the above disposition ban, so his position is very unstable and suffers a disadvantage that hesitates to apply for a full order. Even when comparing the interests of the subrogation authority of the creditor and the all order authority, it is reasonable to assume that the all order is valid despite the above disposition prohibition effect. Therefore, this paper opposes the content of this judgment as reviewed above.