채권자대위권 행사의 처분금지효와 제3채무자의 법정해제－대법원 전원합의체 2012. 5. 17. 선고 2011다87235 판결－

Abstract

Even in the case where a third debtor exercises his legal rescission, preceding judicial decisions considered it as a disposition act of the debtor because of the debtor’s default. However, this is not proper on the side of the concept of disposition act, the equilibrium with the credit transfer and a lawsuit economy. In order to be in equilibrium with the fact that a debtor’s default alone does not cause the validity of change to the right to occur and so the default alone cannot be grasped as a positive act to nullify the credit to a debtor, and the fact that the legal rescission is a due legal action of a third debtor for an objective default of a debtor, and the fact that even if a credit is attached or temporarily attached, the cancellation of the basic contract which is the cause of occurrence of the credit which is attached or temporarily attached is recognized, the judicial decision on this study was against the preceding decisions by claiming that the rescission of the sale and purchase contract by the third debtor due to the debtor’s default cannot be applicable to the disposition under Paragraph 2, Article 405 of the Civil Law. This decision is very appropriate on the side of the concept of disposition act, the legal position of the third debtor in the subrogation right of the obligee, and the equilibrium with a credit attachment. Furthermore, it seems to be a rescission of a contract due to a debtor’s default but in fact, if there is a special reason that the termination by agreement between the debtor and a third debtor, the decision claimed that the third debtor cannot oppose the person who has the subrogation right by the rescission of the contract. It is not easy to distinguish a legal rescission and a termination by agreement, so such a judicial decision is reasonable. It is wondered that such a special reason will be applied to specifically to what cases in future judicial decisions.