채권자대위권에서 보전의 필요성에 관한 판례상 판단기준

The purpose of this thesis is to examine the criteria for judgment presented in the precedents on the 'necessity of preservation', which is the fiercest controversy among the requirements for exercising the subrogation right of creditors. With regard to the meaning of the necessity of such preservation, conventional theories and precedents have discussed whether the debtor is incapacitated or not. However, it is necessary to establish the concept of the ‘necessity of preservation’ that can penetrate and encompass the entirety, regardless of whether the creditor’s claim to the debtor (preserved claim) is a monetary claim or a specific claim. Changes in existing precedents can be divided into: ① Step 1 to distinguish whether the creditor's claim to the debtor (preserved claim) is a specific claim and a monetary claim to use the debtor's incapacity as a requirement of the need for preservation in the case of a monetary claim; ② Step 2 to present various general criteria for judgment without being limiting to the debtor's incapacity; ③ Step 3 to materialize the above jurisprudence through the recent unanimous decision of Supreme Court sentence 2018da879 on May 21, 2020. Based on the summary of the trends of these precedents, the criteria for judging the need for preservation are: First, the requirement of 'necessary means' that it should act as a means necessary for the realization of claims (preserved claims) of the creditor to the debtor; Second, the requirements for ‘exclusion of unfair interference’ that the exercise of the subrogation right of creditors should not unreasonably interfere with the debtor’s free property management activities. Detailed criteria for judgment of necessary means requirements are: ① Contents and nature of the right that the creditor attempts to preserve; ② Whether the debtor is capacitated, ③ Close relationship between the preserved claims and subrogated claims. In addition, it can be said that the requirements for exclusion of unfair interference are concluded to the determination of the interest balancing issue between the materiality and justification of the interest held by the creditor and the free property management right held by the debtor. The detailed criteria for judgment of interest balancing include whether there are special interests of the creditor due to the exercise of the creditor's subrogation right, the effect on the debtor's liability property and the extent of damage to the debtor's economic interests, whether there are other alternative means, and whether the debtor has violated his obligations. In addition, if there are other means of remedies in exercising the subrogation right of creditors - in other words, as to whether complementarity is necessary, it is thought that it is reasonable to deny complementarity. Complementarity can be considered as a detailed criterion for judgment whether there is unreasonable interference with the debtor's free property management activities.