채권자대위권에 있어서 ʻ채권보전의 필요성ʼ의 의미 - 대법원 2022. 8. 25. 선고 2019다229202 전원합의체 판결 -

초록

Article 404 of the Korean Civil Code (Oblique Action) provides that a creditor may exercise the right vested in the debtor in order to preserve his/her own claim. The condition “in order to preserve his/her own claim” corresponds to “where a debtor’s failure in the exercise of his patrimonial rights and actions compromises the rights of his creditor” in Article 1341-1 of the French Civil Code. In the ruling (n°2019Da229202) of the Korean Supreme Court that was decided en banc on August 25th, 2020, the majority opinion proclaimed that, in principle, where a creditor exercises an oblique action to preserve their own monetary claim, their debtor is required to be insolvent. However, I disagree with this finding for the following reasons. First, the majority opinion implies that a debtor’s insolvency is not required when a creditor’s own claim is non-monetary without providing any grounds. I cannot find reasons to see it differently depending on whether a creditor’s own claim is monetary or non-monetary. Second, the privity of contract and prohibition of obtaining satisfaction from a debtor of one’s own debtor should not be grounds to require a debtor’s insolvency. Third, if the majority opinion still insists that a debtor’s insolvency should be required, the argument might be related to the principle of effect for the benefit of all creditors. Nevertheless, the experience so far has shown us that much trouble has come up in fulfilling the principle. Even France had already encountered the same trouble and revised its civil execution system in the 1990s. The Korean Supreme Court itself has already started to construct newly the meaning of the condition (preservation of a creditor’s own claim) without mentioning a debtor’s insolvency since the ruling (n°99Da38699) was decided on May 8th, 2001. This logic should be applied whether a creditor’s own claim is monetary or not. In conclusion, I agree with the differing (minority) opinion of the n°2019Da229202 ruling.

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