추심명령 발령 시에도 채무자의 당사자적격이 유지된다는 판결에 대한 검토 - 대법원 2025. 10. 23. 선고 2021다252977 전원합의체판결에 대하여 -

The Supreme Court Decision 2021Da252977, delivered on October 23, 2025 (hereinafter referred to as the “Subject Decision”) is an noteworthy full bench decision that changed the existing case law (such as the Supreme Court Decision 99Da23888, delivered on April 11, 2000) regarding whether a debtor loses the standing to file a suit for performance against a third-party debtor when there is a collection order or seizure by delinquency disposition for a debt. The Supreme Court has established various derived legal principles based on the premise that the debtor loses his standing as a party when a collection order is issued for the past 25 years, such as the legality of a creditor's subrogation lawsuit when a creditor's subrogation lawsuit and a collection lawsuit are in conflict, Whether or not it is a duplicate lawsuit when the debtor first files a lawsuit against the same seized claim and then the collection creditor files a lawsuit thereafter and the scope of final and confirmed judgment obtained by a collecting creditor. However, the subject judgment ruled that the debtor's standing as a party is still maintained even when a collection order is issued, citing reasons such as the absence of a legal basis for depriving the debtor of his standing as a party, the debtor's interest in filing a lawsuit, and the economy of litigation, saying that a change in existing precedents is inevitable. However, regarding the new legal theory of the subject judgment, ① first of all, in light of the fact that the Civil Execution Act imposes an obligation on the creditor for seizure and collection to compensate for damages due to negligence in collection beyond granting the authority to collect debts and allows for filing a collection suit without a subrogation procedure, there are doubts as to whether the new interpretation can be considered in line with the legislative intent of the Civil Execution Act; ② by changing the legal theory on the debtor's capacity as a party, which has been consistently decided for a long time, it is inevitable that various legal principles derived from it (such as the problem of filing duplicate lawsuits related to collection suits and the legal theory on res judicata) will be changed, and there are concerns as to whether the impact can be estimated; ③ I think that a concrete and realistic review of these issues is necessary, as there are practical problems as to how to resolve the conflict between the scope of res judicata of collection suits under the changed legal theory and the current Article 249, Paragraphs 3 and 4 of the Civil Execution Act; how to supplement the form of judgment orders in joint lawsuits under the new legal theory; and how to resolve the legislative deficiencies to guarantee the opportunity for participation of collection creditors. In my opinion, the Supreme Court's previous and new legal doctrines regarding debtors' standing as parties both appear to stem from profound considerations regarding whose rights should be prioritized: the rights of debt collectors granted collection authority or the rights of debtors who still possess substantive rights, and how to protect the rights of others who may be relatively weakened as a result. Regardless of which position is taken, if some rights are more protected, some will inevitably be weakened. Nevertheless, it is difficult to accept that the aspect of litigation economy should be overemphasized. (It is difficult to readily agree with the logic of the subject judgment, which states that following previous legal theory would cause serious problems in the litigation economy.) thereby discarding the long-established legal doctrine of debtor standing and other case law principles that have been expanded from it, thereby enduring the resulting procedural confusion and the limitations of the current law which are not yet been revised to apply the new legal interpretation as it is.