상세검색
최근 검색어 전체 삭제
다국어입력
즐겨찾기0
커버이미지 없음
KCI우수등재 학술저널

數人이 채권의 일부씩을 代位辨濟한 경우에 있어서의 配當順位

대법원 2006. 2. 10. 선고 2004다2762 판결

In case the third party or the joint debtor performed the debt in lieu of the debtor, the performer come to have the right of demanding compensation or the right to indemnity for the debtor. The method of subrogation is that subrogation is possible through the consent of the creditor in case of voluntary subrogation without just benefit of subrogation, and the notice to the debtor by the creditor or the approval of subrogation by the debtor is necessary to meet the debtor by such subrogation. In case of the legal subrogation with the just benefit of subrogation, it is possible to subrogate the creditor by performance de jure. Subrogation is not only possible to subrogate all of the debtor but also to perform some of the debtor. In case only some of the credit or obligatory right is transferred to the person performing the obligation and the other comes to remain in the creditor. In case of partial subrogation, the subrogator is supposed to exercise the right with the creditor in proportion to the amount of money he repaid. But there may be controversy because there is not standard for superiority or inferiority between the subrogator and the creditor in exercising the right but the subrogator can only exercise his right with the creditor in case the creditor exercises his right and the creditor takes preference over the subrogator in the satisfaction of the obligation. Subsec. 2 of Sec. 482 of the Civil Code provides the order of subrogation and percentage in an attempt to settle confusion and fairness among a few subrogators in their mutual relationship. In the relationship to the third party who is a purchaser of the leased or mortgaged thing, the surety cannot be subrogated to the rights of the obligees as against the purchaser of the right on a leased or mortgaged thing unless a caveat of subrogation has been entered in advance against the registration of the lease entered or the mortgage. Because the third party who is a purchaser took the risk of purchasing real property with the burden of encumbrance, he does not subrogate the creditor to the rights of the obligee as against a surety. The surety and the real surety subrogate the creditor to the rights of the obligee in proportion to the number of their number and in the relationship among the several third parties who are purchasers, one of them may be subrogated to the rights of the obligee as against the other purchasers in proportion to the value of each immovable property. In case there are several real sureties who have furnished their own property as security for the obligation of another, the subrogation shall take place in respect of the balance by the surety, and in proportion to the value of each property. And this study attempted to the order of dividend between partial subrogators in the procedures for dividend due to the performance of the right of the collateral security in case several sureties have performed a part of the obligation on behalf of the obligor by subrogation.

[사실관계]

[판결요지]

[연구]

Ⅰ. 대위변제일반

Ⅱ. 공장저당에 있어서의 배당

Ⅲ. 대상판결의 평가

Ⅳ. 결론

로딩중