채무자가 한 소송의 판결이 확정된 뒤의 채권자 대위소송 -대법원 2009.3.12. 선고 2008다65839 판결에 대한 평석-

Abstract

Korean Civil Code art. 404 (1) stipulate creditor’s right to subrogate debtor’s right against debtor’s debtor. Creditor can ask the third debtor to perform her obligation directly to creditor himself when the debtor dose not exercise his right to the third debtor, if it is necessary for him to preserve his credit. Creditor could sue the third debtor with his right to subrogate debtor if the third debtor not comply with her obligation The question arising here is that what’s the destiny of creditor’s subrogating action when debtor has initiated an action against her debtor. There are two kinds of theories related to this question. The one argues that in such a case the court should dismiss the complaint because the creditor can no more be a qualified plaintiff when debtor performs his own right by suing the third debtor. Korean Supreme Court(KSC)’s 2008da65839 decision followed this theory which is supported by majority of scholars. On the other hand some scholars standing in other side assert that even though debtor has initiated an action against his debtor, creditor also can legally carry out his own subrogating action against the third debtor because creditor is not procedurally delegating debtor but is performing her own substantial right of subrogation. In this commentary I took the minor’s stance of opinion. I think that creditor remains procedurally legal plaintiff even though debtor commence his own action against his debtor; but as creditor loses his substantial right of subrogation by debtors performance of his own right, the court could only reject plaintiff’s cause of action on merits.