추심소송과 기판력의 주관적 범위 — 추심소송과 채권자대위소송의 비교를 중심으로 —

Abstract

The collection lawsuit and the subrogation lawsuit of creditors are structurally similar in that they exercise the debtor's rights against the third debtor in the creditor's position. In particular, in the case of a so-called “direct payment” creditor subrogation lawsuit, which has a preferential repayment effect by directly receiving money from a third debtor and offsetting the debtor's return and preserved bonds, it functions similar to a collection lawsuit for the satisfaction of an executive creditor. In addition, if the debtor knows the fact in any circumstances when a lawsuit by subrogation of creditors is filed, the debtor cannot counter the disposition of his rights to the creditor under Article 405 (2) of the Civil Act, which is similar to the effect of the seizure order on the debtor.
 However, the above two types of litigation reveal significant differences in the status of the legal system, origin of the system, purpose of the system, eligibility of parties, and prohibition of disposition, and considering these differences, attempts to easily apply or infer one legal principle to the other should be avoided.
 The target judgment comprehensively reviewed the principle of relativity of res judicata under the Civil Procedure Act, the interpretation of provisions on collection lawsuits under the Civil Execution Act, and the degree of legal risk that third debtors can face.
 As a result, the Supreme Court reached a different conclusion from the attitude of existing precedents on subrogation of creditors regarding the subjective scope of the final judgment of collection litigation, so it is reasonable and valid in terms of the discrimination between the collection litigation and subrogation litigation.
 In resolving issues such as prohibition of double lawsuit, co-litigation, etc., related to the subjective scope of res judicata in the collection litigation revealed in the target judgment, it is necessary to distinguish from the existing legal principles on creditor subrogation litigation and seek an independent and appropriate interpretation consistent with collection litigation.