채권자대위권 행사에 있어 보전의 필요성 – 대법원 2022. 8. 22. 선고 2019다229202 전원합의체 판결을 중심으로 -

Abstract

In order to exercise the creditor's right of subrogation, it must be necessary to preserve the claim. If the debtor intends to exercise a monetary claim by means of subrogation and the debtor has property, there must be a close relationship between preservation right and subrogation right. However, the legitimacy of the voluntary non-reimbursable treatment act must be judged first, and then whether the patient's right to claim for the return of unjust enrichment is established. Thus, a normative judgment on the legitimacy of voluntary non-reimbursable treatment act is required for both the insurer's claim for the return of unjust enrichment to the insured person and the patient's claim for return of the unjust enrichment to the medical institution. Therefore, preservation right and subrogation right are closely related, and it can be a valid and appropriate means for an insurance company to directly claim the return of unjust enrichment from a medical institution. In addition, the exercise of the creditor's right to subrogation shall not unreasonably interfere with the exercise of the debtor's right to manage the property. However, if the medical treatment is judged to be illegal, in normal cases, the patient will want the treatment to be returned. Therefore, in this case, the exercise of the creditor's right of subrogation does not unreasonably interfere with the management of the debtor's property. So it is possible to exercise the creditor's right of subrogation as there is a need for preservation.