변제자대위에 관한 입법론과 해석론 －대위자 상호 간 법률관계를 중심으로－

This article examines the legal relationships among subrogating payers, with particular focus on the issue of subrogation ratios among subrogees, as addressed in Article 482, Paragraph (2), Items 3, 4, and 5 of the Korean Civil Code. It subsequently presents legislative and interpretative ideas related to this issue. The key findings of the analysis are as follows: 1. In cases of subrogation by the payer, determining the subrogation ratio among subrogees is essential for ensuring the equitable distribution of the principal debtor’s insolvency risk. As a general default rule, the subrogation ratio should be determined in proportion to the amount for which each subrogee is independently liable to the creditor at the time of subrogee’s actual payment. This approach, referred to as the independent-risk standard, provides a fair allocation of risk. (legislative suggestion) Some type of allocation according to the independent risk might also be reached through the teleological reduction of Article 482, Paragraph (2), Items 3, 4, and 5 of the Korean Civil Code. 2. If, following partial subrogation through partial payment, the principal debtor subsequently makes a payment or other circumstances arise that reduce the principal obligation, it may be appropriate to recalculate the subrogation ratio to reflect the changed circumstances. Such adjustments contribute to a fair distribution of the principal debtor’s insolvency risk among subrogees. (legislative suggestion) 3. From the perspective of interpretive suggestions: ① In cases of joint and several liability, the general rule is recourse based on a fixed proportion irrespective of whether subrogees’s payment exceeds their internal burden. However, an exception allows for the recognition of the dolo agit defense. ② In cases of co-suretyship, the general rule is recourse based on a fixed amount, meaning that recourse is permitted only when subrogees’s payment exceeds their internal burden; however, if the principal debtor’s insolvency was not clearly evident at the time of subrogee’s payment, recourse based on a fixed proportion applies. As an exception to this, the dolo agit defense may also be recognized. ③ For other types of subrogees, the legal principles should be applied in the same manner as in (②). From a legislative perspective, a unified approach that treats all three cases in the same manner as (①) could be considered. 4. The issue of recourse among partial sureties should be addressed in the same way as in 3(②). Even when the scope of each partial suretyship does not overlap, recourse based on a fixed proportion irrespective of whether subrogees’s payment exceeds their internal burden, may still be permitted according to the financial status of the principal debtor. 5. When recourse among co-sureties based on a fixed amount is allowed, the right of recourse should be determined according to each subrogee’s internal burden at the time of one subrogee’s payment, as outlined in key finding 1. Even if the recourse obligor later makes a payment to the creditor, thereby reducing their own internal burden, this does not alter the scope of the initial subrogee’s right of recourse. In principle, the content and extent of the right of recourse are established at the moment the right is acquired -specifically, when the recourse obligee makes the payment to the creditor.