조세채권을 대위변제한 납세보증보험자의 회생절차상 지위

The issue of whether the tax bond insurer who pays for a taxation claim of the debtor company can subrogate the power of the tax authority in the rehabilitation proceedings is highly debatable. Because a taxation claim exercised by the state or local authorities is in nature different from the general claim in private law, and accordingly ruled differently from other claims in the Debtor Rehabilitation and Bankruptcy Act(“DRBA”), it raises a question whether it is legitimate that the tax bond insurer who pays for the taxation claim is entitled to rank along with the tax authorities in the rehabilitation proceedings. First, regarding the third party payor's subrogation on a taxation claim; though some oppose the subrogation because of the inalienability and other unique characteristics of the taxation claim, it is agreed that the private law provisions apply or may apply by analogy to the tax law relationship except where otherwise stated, and that the third party payor can subrogate the taxation claim. Although opinions concerning which subrogation right is the tax bond insurer who pay for the taxation claim is entitled to (or can exercise) may be divided, it is understood that the payor is not entitled to collect by him/herself according to the tax collection process, but has the priority of the taxation claim. In the rehabilitation proceedings, a taxation claim is classified as a rehabilitation claim(unsecured claim) or a public interest claim(expenses and claims which are granted first priority over any other secured or unsecured claims in distribution by the DRBA). If the tax bond insurer pays for a taxation claim as public interest claim, he will be entitled to rank along with the other public interest creditors by subrogation and can bring an action against the custodian in default out of the rehabilitation proceedings. When the tax bond insurer pays for a taxation claim as rehabilitation claim, he will report the rehabilitation claim and submit the proof of the subrogation right to the rehabilitation court and participate in the rehabilitation proceedings. But the opinions concerning the insurer's status within the rehabilitation proceedings are divided into three perspectives: (1) that the special rules about the taxation claim should apply to his subrogation right because the taxation claim is transferred as it is by subrogation, (2) that his subrogation right is the rehabilitation claim because the taxation claim is classified as the rehabilitation claim, but has priority because the priority of tax is transferred by subrogation, and (3) that his subrogation right concerns only the rehabilitation claim, because public law cannot apply to his private law relationship, and his subrogation right is just the claim to ask for money. Considering the characteristics of the rehabilitation proceedings that distribute the limited value of the debtor company to the creditors fairly by due process of law and conciliate the interested collectively, the priority of the taxation claim which is different from the private law claims, and the effect of the third party payor's subrogation in the Civil Law, it is concluded that the subrogation claim of the tax bond insurer who pays for a taxation claim as rehabilitation claim and reports on a claim and submits a proof of claim is the general preferential rehabilitation claim in the rehabilitation proceedings.