금전채권자의 공유물분할청구권 대위행사와 보전의 필요성- 대법원 2020. 5. 21. 선고 2018다879 전원합의체 판결을 중심으로 -

This paper closely examines the issue of whether a creditor of a co-owner may demand the division of the property to the other co-owner, exercising her right of subrogation under the Korean Civil Code (hereinafter “KCC”). A fairly recent Supreme Court en banc Decision (dated May 21, 2020, 2018Da879) dealt with the very issue. The majority opinion of the said Decision denied the availability of such claim, based on the reason that exercising the right of subrogation, in this case, did not contribute to the preservation of her claim. On the other hand, the dissenting opinion allowed the creditor to exercise her right of subrogation, in the way of demanding the division of the property to the other co-owner. The creditor/plaintiff of this case had a monetary claim, and the debtor did not have enough money (or any other asset) to repay her debt. The value of the share the debtor herself owned did not amount to the sum of the claim secured by mortgage. However, the value of the property as a whole exceeded the sum of the claim secured by mortgage; so the creditor could have collected the debt, if she had been allowed to exercise her right of subrogation, demanding the division of the property to the co-owner. Under such circumstances, the dissenting opinion may bring more desirable results, considering the interests of each stakeholder. Article 404 of the KCC, after all, is meant to provide the creditor with the means to collect the debt, as long as the requirements set upon are met. So it would be safe to say that the dissenting opinion better serves the purpose of the subrogation right.