채권자대위소송의 소송요건으로서 권리불행사-대법원 2018.10.25.선고 2018다210539 판결에 대한 비판-
A Obligor’s Failure Exercise the Right as One of Condition of Lawful Prosecution in the Action for Obligee's Subrogation Right A Criticism on- Supreme Court Decision 2018Da210539 Decided October 25, 2020-
이동률(건국대학교)
24권 3호, 121~149쪽
초록
An obligee may, in order to preserve his claim, exercise the rights belonging to the obligor. There are two rights in the Obligee's Right of Subrogation. One is the Obligee's right which is called the Right belonging to the obligor. The other is the obligor's rights to the third obligor, which is called the third party. If the Obligor did not exercise his right, the question is whether it is a flaw with respect to substantive requirement or a flaw with respect to litigation requirement. The Supreme Court case is interpreted as the latter. If the first lawsuit was a dismissal decision which is flawed with respect to substantive requirement, the issue in the second lawsuit is whether the obligor exercised his rights. Although the subject judgment is negating, this article introduces the Supreme Court cases regarding whether this conclusion was theoretically valid in terms of the legal nature and condition of lawful exercise of the rights belonging to the obligor.
Abstract
An obligee may, in order to preserve his claim, exercise the rights belonging to the obligor. There are two rights in the Obligee's Right of Subrogation. One is the Obligee's right which is called the Right belonging to the obligor. The other is the obligor's rights to the third obligor, which is called the third party. If the Obligor did not exercise his right, the question is whether it is a flaw with respect to substantive requirement or a flaw with respect to litigation requirement. The Supreme Court case is interpreted as the latter. If the first lawsuit was a dismissal decision which is flawed with respect to substantive requirement, the issue in the second lawsuit is whether the obligor exercised his rights. Although the subject judgment is negating, this article introduces the Supreme Court cases regarding whether this conclusion was theoretically valid in terms of the legal nature and condition of lawful exercise of the rights belonging to the obligor.
- 발행기관:
- 한국민사소송법학회
- 분류:
- 법학