물상보증인과 제3취득자 상호간 변제자대위여부와 범위

• 영문명: The Issue and Scope of Subrogation between the Surety and the Third Acquisitor
• 발행기관: 원광대학교 법학연구소
• 저자명: 조준현(Cho Joon Hyun)
• 간행물 정보: 『원광법학』제31권 제2호, 35~67쪽, 전체 33쪽
• 주제분류: 법학 > 법학
• 파일형태: PDF
• 발행일자: 2015.06.30

영문 초록

Since the Article 482 Section 2 of the Civil Code does not stipulate clearly with regard to the subrogation between the surety and the third acquisitor, dissensions abound on the issue and scope of subrogation between the surety and the third acquisitor in the case where the surety has repaid the debt in the debtor's stead. I think the third acquisitor must be differentiated into the third acquisitor from the debtor and the third acquisitor from the surety and be treated differently: the third acquisitor from the debtor must be treated in accordance with the debtor, and the third acquisitor from the surety in accordance with the surety. The third acquisitor from the debtor cannot subrogate the creditor against the surety, but the third acquisitor from the surety can subrogate the creditor against other surety in proportion to the value of the real property. The surety can subrogate the creditor against the third acquisitor from the debtor with the entire amount of repayment with the prerequisite supplementary registration of subrogation, but the surety can subrogate the creditor against the third acquisitor from other surety in proportion to the value of the real property. In such case, after the repayment the surety must complete the supplementary registration of subrogation before the acquisition of the right (registration) by the third acquisitor. The supreme court ruling on the case deemed the surety as a guarantor with respect to the relation to the third acquisitor and clearly declared that the surety can subrogate the creditor against the third acquisitor from the debtor with the entire amount of repayment, but the third acquisitor from the debtor cannot subrogate the creditor against the surety. The ruling is meaningful, I think, in that it broke the precedent in opposition and set forth a standard on the issue and scope of subrogation between the surety and the third acquisitor. Nonetheless, whether the logic of the ruling can apply to the subrogation between the surety and the third acquisitor from other surety needs to be further discussed.

목차

Ⅰ. 서론

Ⅱ. 사안의 개요와 소송의 경과

Ⅲ. 대법원의 판단

Ⅳ. 평석

Ⅴ. 결론

참고문헌

키워드

물상보증인과 제3취득자의 대위관계 변제자대위 대위변제 법정대위자 상호간의 효과 물상보증인 제3취득자 채무자로부터의 제3취득자 구상권 Subrogation between surety and third acquisitor subrogation by redeemer subrogation redemption effect between legal subrogators surety third acquisitor third acquisitor from debtor right to indemnity