물상보증인과 채무자로부터 담보부동산을 취득한 제3자 사이의 대위관계

Since the Article 482, paragraph 2 of the Civil Act does not clearly provide the rules governing subrogation with regard to the right of a surety against a third party purchaser(another creditor), there has been problems in interpreting the law as to whether the surety can assert the benefits of subrogation. In this regard, the Supreme Court recently overturned its precedent and decided as follows(The Supreme Court Decision, judgement of 2011Da50233, dispossed of by full opinion on December 18, 2014): “When the surety made payment or lost its right against the collateral upon the disposition of the collateral, the surety can assert the benefits of subrogation against a purchaser who buys the collateral from the debtor to the extent of the full amount of the payment that surety made. On the contrary, although a purchaser who buys the collateral from the debtor made payment or lost its right against the collateral upon the disposition of the collateral, a third party purchaser can’t assert the benefits of subrogation. This paper, supporting the decision of the Supreme Court in interpreting the Article 482, paragraph 2, examines whether the rights of a surety and a guarantor are identical or not, and whether it is reasonable to make a distinction between a purchaser who buys the collateral from the debtor and a purchaser who buys the collateral from the surety. After thorough examination and review of precedents, I am compelled to conclude as such in this paper, as to the allocation of priority among conflicting interest between the surety and a third party purchaser.