채권자대위소송에 있어서 채무자의 소송참가

Abstract

Subrogation litigation by creditor is a litigation by a creditor to a third debtor in order to preserve his or her bond. Therefore, the issue in subrogation litigation by creditor should first look at what legal basis the creditor exercises the debtor's rights on. And if the creditor has the right to perform a lawsuit, the subject of attribution, the debtor, will lose the right to perform a lawsuit. Whether it will be or not is the question. If the debtor's right to perform a lawsuit is lost due to the subrogation litigation of the creditor, the discussion surrounding the subrogation litigation by creditor can be discussed very simply. However, there is no opinion that the debtor's right to perform a lawsuit is lost, however, there is an opinion of a minority that it will be lost after notice of the fact of the subrogation. As such, whether the debtor's right to perform a lawsuit is a premise for the most basic discussion in a subrogation litigation by creditor. It seems that the discussion on the substantive law is insufficient. Since the issue of legal standing of a debtor under the litigation law is a form of expression of the right of management and disposition under the substantive law, a discussion on the substantive law should be a prerequisite. Therefore, in this article, we have discussed whether or not the debtor's right of management and disposition is lost due to notification of subrogation, etc. That is, the right of management and disposition of a subrogation bond of the debtor is not lost by notification of the fact of subrogation, etc., remain legal standing parties. As such, it is logical to think that if the debtor remains as legal standing parties during the continuation of the subrogation action, it can exercise all of its rights as a party. However, the majority theory and precedent are interpreted as being inevitably limited by the prohibition of duplicative litigation and the effect of excluding further litigation under the Litigation Act, and such majority theory and precedent do not appear to be unreasonable. Then, it should be discussed how to provide the debtor with the status as the parties to a suit the opportunity to participate in the subrogation action through other means. In this paper, the alternatives are to allow joint participation in litigation and Independent Party Intervention. Also, if it is difficult for the debtor to participate as a party due to litigation costs, etc., joint litigation supplementary participation equivalent to the status of the parties to a suit is possible. Therefore, the view of the majority theory that joint litigation supplementary participation can participate in cases where a third party subject to the effect of a judgment does not have legal standing should be revised.