채권자대위에 의한 재심소송의 당사자적격에 관한 검토 －대법원 2012다75239판결 중심으로－

Abstract

In order that, as for this paper, this incident Supreme Court judgment may preserve a claim, when a subrogation event is required, subrogation is allowed also not only to a substantive law top right but to a code-of-legal-procedure top right, However, judgment of not getting used to the purpose of the subrogation right of obligee which the retrial lawsuit which does not follow to the judgment for a retrial conventionally like institution of the appeal, and asks for resumption of legal proceedings, continuation, and the retrial version conventionally processes quickly was made, and it looked focusing on the examination to this. The writer received whether it was that there is claim subrogation conformity of the retrial lawsuit which the subrogation right of obligee expects and uses, could not approve of judgment of this incident judicial precedent conclusively, and arranged the retrial legal proceedings raised by the creditor captain according to the conclusion that that conformity is authorized in connection with this. It is expected to say that the claim of a retrial lawsuit is using to realize the substantive law top property top right relation of a pre-lawsuit (judgment for a retrial), therefore can accept conformity. Since the retrial lawsuit saw such a conclusion in the form of the lawsuit which asserts the right on a substantive law even if it led the examination to the Prozessgegenstand of a retrial lawsuit, it was explained that conformity was accepted. Moreover, the plaintiff of the retrial in which a writer has an understanding relation to a fraudulent-injury lawsuit is the conclusion that it is appropriate to submit a retrial lawsuit to recovery of the right which canceled at once the legal relation between the plaintiff which is a person concerned with a legal relation, and a defendant and on which it infringed with the lawsuit form of independent bill-of-proof form if possible.