물상보증인의 사전구상권 인정 여부

Since the Civil Code does not stipulate clearly on the real surety's right to indemnity in advance, positions are divided on whether the Article 442 on the trust surety's right to indemnity in advance applies to the real surety and thereby acknowledges the right to indemnity in advance to the real surety as well. The relevant Supreme Court ruling rendered for the first time the explicit denial of the real surety's right to indemnity in advance on the reasons of the interpretation of the Article 341, the meanings of the surety entrust and the real surety entrust, and the uncertainty of the scope of the right to indemnity of the real surety. However, in my opinion, the right to indemnity in advance needs to be acknowledged to the real surety in the cases of the Sections 2 to 4 of the Clause 1 of the Article 442, but the content therein should be interpreted as follows: The real surety can demand the debtor to pay for the indemnity in advance. However, the debtor can plead to the effect that the debtor would pay for the indemnity only in the effect of immunity from responsibility or the exchange of collateral provision(The first half of the Article 443). Even when the real surety in accordance to such plead prepares for the immunity of responsibility or collateral provision and places the demand for the payment of the indemnity again, the debtor can avoid the payment of indemnity by making public deposit of the amount of indemnity, providing collateral, or exonerating the responsibility of the real surety(The second half of the Article 443).