물상보증인과 제3취득자 상호간 변제자대위여부와 범위 (The Issue and Scope of Subrogation between the Surety and the Third Acquisitor)

서지정보

· 발행기관 : 원광대학교 법학연구소
· 수록지 정보 : 원광법학 / 31권 / 2호 / 35 ~ 67페이지
· 저자명 : 조준현

초록

The Issue and Scope of Subrogation between the Surety and the Third Acquisitor

Cho, Joon-Hyun

Since the Article 482 Section 2 of the Civil Code does not stipulate clearly with regard to the subrogation between the surety and the third acquisitor, dissensions abound on the issue and scope of subrogation between the surety and the third acquisitor in the case where the surety has repaid the debt in the debtor's stead.


I think the third acquisitor must be differentiated into the third acquisitor from the debtor and the third acquisitor from the surety and be treated differently: the third acquisitor from the debtor must be treated in accordance with the debtor, and the third acquisitor from the surety in accordance with the surety. The third acquisitor from the debtor cannot subrogate the creditor against the surety, but the third acquisitor from the surety can subrogate the creditor against other surety in proportion to the value of the real property. The surety can subrogate the creditor against the third acquisitor from the debtor with the entire amount of repayment with the prerequisite supplementary registration of subrogation, but the surety can subrogate the creditor against the third acquisitor from other surety in proportion to the value of the real property. In such case, after the repayment the surety must complete the supplementary registration of subrogation before the acquisition of the right (registration) by the third acquisitor.


The supreme court ruling on the case deemed the surety as a guarantor with respect to the relation to the third acquisitor and clearly declared that the surety can subrogate the creditor against the third acquisitor from the debtor with the entire amount of repayment, but the third acquisitor from the debtor cannot subrogate the creditor against the surety. The ruling is meaningful, I think, in that it broke the precedent in opposition and set forth a standard on the issue and scope of subrogation between the surety and the third acquisitor. Nonetheless, whether the logic of the ruling can apply to the subrogation between the surety and the third acquisitor from other surety needs to be further discussed.

영어초록

The Issue and Scope of Subrogation between the Surety and the Third Acquisitor

Cho, Joon-Hyun

Since the Article 482 Section 2 of the Civil Code does not stipulate clearly with regard to the subrogation between the surety and the third acquisitor, dissensions abound on the issue and scope of subrogation between the surety and the third acquisitor in the case where the surety has repaid the debt in the debtor's stead.


I think the third acquisitor must be differentiated into the third acquisitor from the debtor and the third acquisitor from the surety and be treated differently: the third acquisitor from the debtor must be treated in accordance with the debtor, and the third acquisitor from the surety in accordance with the surety. The third acquisitor from the debtor cannot subrogate the creditor against the surety, but the third acquisitor from the surety can subrogate the creditor against other surety in proportion to the value of the real property. The surety can subrogate the creditor against the third acquisitor from the debtor with the entire amount of repayment with the prerequisite supplementary registration of subrogation, but the surety can subrogate the creditor against the third acquisitor from other surety in proportion to the value of the real property. In such case, after the repayment the surety must complete the supplementary registration of subrogation before the acquisition of the right (registration) by the third acquisitor.


The supreme court ruling on the case deemed the surety as a guarantor with respect to the relation to the third acquisitor and clearly declared that the surety can subrogate the creditor against the third acquisitor from the debtor with the entire amount of repayment, but the third acquisitor from the debtor cannot subrogate the creditor against the surety. The ruling is meaningful, I think, in that it broke the precedent in opposition and set forth a standard on the issue and scope of subrogation between the surety and the third acquisitor. Nonetheless, whether the logic of the ruling can apply to the subrogation between the surety and the third acquisitor from other surety needs to be further discussed.

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