채권자대위소송에서의 당사자적격과 중복소송에 대한 검토

There are three types in which an obligor's complaint can be filed. The first type is creditor filed obligor’s subrogation claim as previous action and debtor filed later action. The first type can be divided into three forms: The first is that a debtor's later action is filed in the form of an independent or counteraction. The second is that a debtor's later action is filed in the form of intervention. The last is that a debtor’s later action is filed in the form of intervention as independent party. In the first, it makes sense to dismiss a later action because it consider duplicate lawsuit. In the second case, if a debtor's later action is auxiliary intervention or auxiliary intervention as joint litigation, the later action is permit, but if it is intervention as co-litigant, it makes sense to dismiss as duplicate lawsuit. In the third case, if a debtor’s later action is filed in the form of intervention as independent party, it can be permit because debtor has intrinsic standing. The Second type is debtor’s previous action is filed before obligor’s subrogation claim is filed as later action. Thus, logically it is adequate to judge the defect's of the qualification to be a party rather than the duplicate lawsuit. In other words, the precedents have to be united with dismissing by the defect's of the qualification to be a party. The third type is creditor filed obligor’s subrogation claim as previous action and another creditor filed another obligor's subrogation claim as later action. In this case, precedent dismiss it as duplicate lawsuit, but it is appropriate the to intervention as co-litigant seem to joinder and hearing. Even if it were to be incinerated, it would be more reasonable to dismiss lawsuit with the defect's of qualification to be a party rather than dismiss with later action because of the duplicate lawsuit. If we hear the case with intervention as co-litigant not dismissing, using both of them is fine if the obligator's claim to be subrogated by obligee is bigger than the sum of the claim to be preserved. Thus, the court ruled in favor of the plaintiff with sustaining previous and later action, and the third debtor have to pay the rest balance to the debtor. In the contrast, if the obligator's claim to be subrogated by obligee is smaller than sum of the claim to be preserved, it is reasonable that both of the previous and later action ruled the partial sustain judgement because every debtors have the purpose in the preservation of co-security. Because in the principle of creditor equality, allocating the obligator's claim to be subrogated by obligee is reasonable by the rate of the creditor's claim to be preserved. Therefore, it is reasonable to change the precedents with ruling with different opinion of these ideas.