채권자대위권에서 ‘보전의 필요성’과 채권자평등주의의 문제 -대법원 2018다879 전원합의체 판결과 관련하여

Generally, it is said that the obligee’s right of subrogation is an institution to preserve the obligor’s general property, and the effect of its exercise belongs to the obligor. Conventional common theory was that the exercise requirements of subrogation right of the obligee is the debtor’s insolvency. However, the court has permitted the obligee’s exercise of the right of subrogation regardless of the debtor’s insolvency. The relationship of the obligee’s right and debtor’s right to the third obligor was suggested for the requirement of the creditor’s right of subrogation instead of the debtor’s insolvency. A fairly recent Supreme Court en banc Decision 2018Da879 Decided May 21, 2020, dealt with this very issue. Through the Decision, the issue of the requirement of the obligee’s right of subrogation has been demonstrated clearly and definitely, but the vagueness of the concept still remains. Therefore, the purpose of this paper is to solve the problem of the vagueness of the concept about the requirement of the obligee’s right of subrogation in both monetary claim and non-monetary claim. Besides, the obligee’s right of subrogation is used as a direct claim. The Majority Opinion argues that the obligee could claim directly to the third obligor and receive the said third obligor’s reimbursement and, moreover, the said obligee could get a preferential satisfaction through it as a matter of fact. According to this theory, the effects of the exercise of the obligee’s right of subrogation is extended, and the obligee could get the same results as when he exercises the right to claim directly against the third obligor. This results can harm the principle of equality among creditors. The concept of the requirements of the obligee’s right of subrogation must be constructed within the limits of the principle of equality among creditors.