채권자대위권에 관한 이해의 변화 모색 - 보전의 필요성 및 채무자의 무자력과 관련하여 -

Theories have divided creditor subrogation rights into ‘original type’ and ‘exclusive type’, and the former said that the necessity of preservation means the debtor’s insolvency, while the latter said that the debtor’s insolvency is not required without any particular mention of the necessity of preservation. It seems that the former has been recognized as a (general) responsible property preservation system and the latter as an (individual) claim preservation system. However, the 99Da38699 ruling(the Supreme Court sentenced on May 8, 2001) suggested ‘close relationship between creditor’s claim and subrogated right’, ‘when it is necessary to effectively and appropriately secure the actual implementation of creditor’s claim’, and ‘not unreasonable interference in the debtor’s free property management behavior’ as general criteria for judging the ‘necessity of preservation’ of the subrogation rights of creditors. Also, 2018Da879 the all consensus decision(the Supreme Court sentenced on May 21, 2020) ruled ‘close relationship between creditor’s claim and subrogated right’ and ‘the debtor’s insolvency’ as elements for judging whether the exercise of the subrogated right is necessary. With such a series of judgments, the conventional dualized criteria for determining the necessity of preservation of the creditor subrogation rights were unified, but the all consensus ruling above still recognizes the creditor subrogation rights as a (general) responsible property preservation system. However, considering the objectives and practical necessity of legal interpretation, it seems necessary to shift the perception regarding the subrogation rights of creditors to the (individual) claim preservation system.