물상보증인의 사전구상권- 대법원 2009. 7. 23. 선고, 2009다19802,19819 판결－

The purpose of this theses is to commentate the Supreme Court Decision 2009Da19802ㆍ19819 Decided July 23, 2009. Although in this decision are several legal issues involved, this study is limited to the discussion whether the right of pre-reimbursement might be recognized to the person who has furnished his own property as security for the obligation of another‘s obligation(hereafter he is called the Mulsang-surety in this theses) as well as whether he might set-off his right of pre-reimbursement against the obligation which he has against the principal obligor. The above Supreme Court Decision does not accept the defendant 2’s defence that he exercises the right of pre-reimbursement as the Mulsangsurety. This Decision is holding three reasons to that conclusion. That is,① From the Article 341 & 370 which stipulate as “the Mulsang-surety is able to obtain the right of reimbursement when he has discharged the obligor’s debt or has lost the ownership of the secured thing in consequence of the enforcement”, it might be read that the requisite of the right of reimbursement of the Mulsang-surety is prescribed unlikely from that of the surety. ② Unlike the surety, the Mulsang-surety takes limited responsibility only with the secured thing, not undertaking the obligation to the oblgee. ③ Unless there are special circumstances, the scope of the Mulsang-surety’s right of reimbursement can be determined only at the time when he discharges the obligor’s debt or loses the ownership of the secured thing. However, the value judgments on whether necessity for recognizing the pre-reimbursement to the Mulsang-surety exists is more important than a simple interpretation on provisions. If positive judgment for that necessity has been done, the conclusion that the right of reimbursement might be recognized to the Mulsang-surety could be drawn by interpreting current provisions to the positive direction. In this theses, it is considered that the need to protect the Mulsang-surety is no less necessary than the surety even though there is a significant difference in the legal position between the surety and the Mulsang-surety,and it comes to the conclusion that the pre-reimbursement to the Mulsangsurety should be recognized to the Mulsang-surety in order to make him avoid his disadvantageous position, by reinterpreting the negative reasons which the above Decision presents as follows. That is, first, if the Article 341 is to be construed as optional provision, it could be interpreted as that provision does not directly exclude the right of reimbursement from the Mulsang-surety. Second, if the meaning of consignment is interpreted as entrusting the responsibility, then there will be no hindrance in recognizing the pre-reimbursement to the Mulsang-surety. Third, the problem of uncertainty about existence and scope of the Mulsang-surety’s right of pre-reimbursement could be resolved, if the scope of the right of pre-reimbursement which our judicial precedents have shown in the suretyship. By the way, it should not be overlooked that the above Decision says ‘in principle’ the right of pre-reimbursement is not recognized to the Mulsang-surety. That means the case where the above right can be recognized to the Mulsang-surety exists exceptionally. If so, the above Decision leaves some following regrets. Namely, this Decision should have to present the criteria which instances come into the principle case and which instances come into the exceptional case. And after that, it should be also judged that to which case the instance of this Decision is pertaining. Such as the instance of this Decision, where a decision on commencement of auction has been rendered upon a part of the secured things of the Mulsang-surety by the person holding the security right, and a prompt commencement of auction upon the remaining secured things is expected,then it could be judged as the exceptional case where the right of pre-reimbursement might be recognized. And concerning with an other issue of the defendant 2’s defence of set-off,this Decision has ended up without judging it futhermore, by not recognizing the right of pre-reimbursement to him. If the instance of this Decision could be judged as the exceptional case where the right of pre-reimbursement might be recognized to the defendant 2, then his defence of set-off should be judged. And in doing so, it should be also judged which one is the matter of defence that hinders the right of pre-reimbursement among the matters which are provided in Article 443 of the Civil Act.