제3취득자와 물상보증인 상호간의 변제자대위 - 대법원 2014.12.18. 선고2011다50233 전원합의체 판결을 중심으로 -

Abstract

In the provisions of Article 482(2) of the Civil Act, which prescribed relations among subrogators, there is no provision on the issue whether subrogation is available between the person acquiring a real estate, upon which a security is established, and the person who has pledged his or her property to secure another's obligations as a surety. For this issue, majority of theories do not determine whether the payment by such subrogation is permitted or not. And, precedent case laws found that payment by subrogation is available in proportion of the price of real estate against the person who has pledged his or her property to secure another's obligations. However, it is reasonable to consider that the acquisitor of such real estate cannot force the person, who has pledged such real estate to secure another's obligations, to make payment of subrogation because the legal status of such person is similar to that of guarantor. And surety and guarantor is recognized indemnity rights of the same content. Thus, in applying provisions regarding payment by subrogation to such person, the provisions regarding a guarantor shall be applied by inference, which leads to that the acquisitor of such real estate cannot force the person, who has pledged such real estate to secure another's obligations, to make payment of subrogation. By delivering its recent en banc judgment of 2011 Da 50233 on Dec. 18, 2014, the Supreme Court overturned its precedent case laws and found that any acquisitor of a real estate cannot force the person, who has pledged such real estate to secure another's obligations, to make payment of subrogation. In this paper, I analyze such en banc judgment of the Supreme Court mentioned above and examine its appropriateness and implications.