私法上 物上代位法理에 對한 統一的要件定立을 위한 試案

Establishing Three General Requirements of the Doctrine of Real Subrogation under Korean Private Law

This work tries to establish three general requirements of the doctrine of real subrogation under Korean private law. The work argues that the following three elements are needed in applying the doctrine: (1) a pre-existing legal relationship binding the defendant; (2) substitution of an asset for another; and (3) statutory ground. The doctrine of real subrogation has commonly been understood as a means used when those who have security interests want to assert their pre-existing proprietary interests over the substitutes in the hand of their defendant. However, the work proves that the doctrine is not a terrain only for those security right-holders under the current Korean private law. They are also available for those entitled to enjoy benefits arising from the devise, donatio mortis causa, and trusts. Deduced from the analyses of the mechanism of the doctrine of real subrogation used in those cases are the three aforementioned requirements. And they show us that the doctrine can potentially be used much wider than it has been, and, contrary to some trust lawyers argument, the nature of the doctrine adopted in the law of trusts is not different from that recognised in the law of security since they all share the three general requirements presented in this work.