채권자대위소송과 추심소송에 있어 당사자적격에 대한 비교 검토

• 발행기관: 한국민사소송법학회
• 저자명: 오시영
• 간행물 정보: 『민사소송』제15권 제2호, 153~185쪽, 전체 33쪽
• 주제분류: 법학 > 법학
• 파일형태: PDF
• 발행일자: 2011.11.30

영문 초록

In matters pertaining to the obligor, obligee and secondary obligee, a collection claim and an obligor s subrogation claim are systems that allow the obligor to directly pursue collection against the third obligee. Regarding money receivable, however, the two are different in that a collection claim is a procedure for exercising rights (Article 249, Civil Execution Law) wherein the obligor files a lawsuit for performance on the second receivable against the third obligee based on the collection rights obtained through seizure of the rights to the second receivable held by the obligee against the third obligee and using the means of executive title on the first receivable that already exists between the obligor and the obligee. On the other hand, an obligor’s subrogation claim is a substantial law (Article 404, Civil Law) in which the obligor directly seeks the execution of the second receivable against the third obligee, regardless of the status of the executive title on the first receivable between the obligor and the obligee. In the precedents set by the Supreme Court, however, although the right to bring a lawsuit or the qualification to be a party is recognized for both the obligor and the obligee regarding the obligor’s subrogation claim, only that of the collection obligor is recognized regarding the collection claim. If the obligee, who is in reality the obligor, cannot exercise the right to bring a lawsuit against the third obligee because the right to bring a lawsuit is not recognized for the obligee in a collection claim, then in case the collection obligor loses in a collection claim due to insufficient burden of proof, the damages must inevitably be sustained by the obligee due to the expanding efficacy of the judgment. Furthermore, if the obligee’s right to bring a lawsuit is recognized even after the collection order, that is favorable to the collection obligor because the obligor can be invested with the succeeded execution clause and use the efficacy of that ruling to easily carry out a compulsory execution against the third obligee. The third obligee can also appeal the collection order and avoid the danger of a double payment. If there are double or duplicate lawsuits between the collection obligor and obligee, then it will be said that they can be processed by adhering to the rules of intervention or takeover of litigation, and that those cases do not have to be dismissed due to any lack of qualification to be a party. Accordingly, it would be valid for the Supreme Court’s precedents to be changed, and for the qualification to be a party to be recognized for both the collection obligor and obligee in a collection claim, just as in an obligor’s subrogation claim.

목차

Ⅰ. 서 론

Ⅱ. 소송구조에 대한 검토

Ⅲ. 당사자적격에 대한 검토

Ⅳ. 기판력에 대한 검토

Ⅴ. 결 론

참고문헌

키워드

채권자대위소송 추심소송 당사자적격 승계집행문 기판력 각하 소송고지 obligor s subrogation claim collection claim qualification to be a party succeeded execution clause effect of Res Judicata, a matter already judged dismiss notice of lawsuit