우리 법상 공유물분할청구권의 대위행사를 허용할 것인지 여부 - 대법원 2020. 5. 21. 선고 2018다879 전원합의체 판결 -

초록

This ruling was a case dealing with the question whether to permit the exercise by action oblique for the right to demand partition of joint ownership in the Republic of Korea. I have compared this ruling to the civil code and rulings of France to summarize as follows. First, the French civil code explicitly permits the exercise by action oblique for the right to demand partition of joint ownership in Article 815-17. However, I feel that it is difficult to permit it in the Republic of Korea ‘as of right now’, and accordingly agree with the majority opinion. The reason is that South Korean civil code, compared to French civil code, lacks the procedural rights that can mediate and reflect the conflicting interests between the creditors of some joint owners and other joint owners. Second, nevertheless, I cannot agree with the grounds of the majority opinion that exercising the right by action oblique is not to be seen as effectively and appropriately securing practical fulfillment of debenture since it is not directly related to the preservation of debtor’s chargeable property. However, it has been a long time since the interests of exercising action oblique were not limited only to debtor’s insolvency, and this means that action oblique does not serve to preserve debtor’s chargeable property. Third, the majority opinion focuses on the fact that the right to demand partition of joint ownership is Gestaltungsrecht and is based on the fact that the plaintiff cannot determine the specific method of the partitioning of shared assets: whether partition in kind or partition of payment. The Gestaltungsrecht is a concept created in Germany, and does not exist in the French civil code. However, I do not believe that whether the right to demand partition of joint ownership is Gestaltungsrecht or not can serve as the basis for a conclusion different from the French position. Fourth, I think that the minority opinion is appropriate and has a point regarding the real process of action oblique and auction. When a legislative reform is effected in the future to organize such a matter, I think that the arguments of the minority opinion will be more likely to be convincing. Lastly, focus must be placed on the matter in this ruling that despite the debtor’s insolvency, the interests of exercising action oblique were reviewed again according to the aforementioned criteria. This means that action oblique is irrelevant to the insolvency of debtor.

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