판례 평석(대법원 2019. 1. 31. 선고 2017다228618 판결)

Comment on Supreme Court Decision(No. 2017Da228618 Issued on January 31, 2019) - If there is the final judgement about the preserved obligee’ s right at a suits, can the thirdobligor at the suits of the obligor’ s subrogation claim negate the preserved obligee’ s right?

The Supreme Court has accumulated a store of precedents that if there is the final judgement about the preserved obligee’s right at a suits, the thirdobligor at the suits of the obligor’s subrogation claim can not negate the preserved obligee’s right. However, Supreme Court Decision 2014Da74919, Issued on September 24, 2015 ruled that the preserved obligee’s right obtained against the law can be re-claimed extraordinarily by the thirdobligor at the suits of the obligor’s subrogation claim. This object Decision has the same views. Regarding the such Supreme Court Decisions, several basal jurisprudences have issused by scholars and practitioners. The representative basal jurisprudences have been insisted by Scholars and practitioners are the Res Judicata theory, the reflective effect theory and the evidence effect theory. In the first place, the Res Judicata theory is inconsistent with The Civil Process Law(§218③). In the second place, the reflective effect theory has not been precisely sorted and Supreme Court has not adopted such theory. Resultingly, the reflective effect theory is commensurate with basal jurisprudence about Supreme Court Decision No. 2017Da228618 Issued on January 31, 2019. This papers intend to prove that the evidence effect theory is most valuable tool for explaining such Supreme Court Decisions.