채권자대위권의 행사에 의한 처분제한과 대위채권자의 제3채무자에 대한 추심권능 내지 변제수령권한에 대한 압류명령 등의 효력 - 대법원ﾠ2016.8.29.ﾠ선고ﾠ2015다236547ﾠ판결 - = Restriction on the Disposition by the Exercise of Obligee’s Right of Subrogation and Effects of Subrogating Obligee’s Attachment Order, etc. on Collection Authority or Authority to Receive the Repayment against a Third Obligor

다국어 초록 (Multilingual Abstract)

Under the Civil Act, the act of disposition is a legal act to cause the direct transfer, change or extinction of the rights or the legal relationship and is an act based on the intention of a disposition right holder, so the disposition act restricted in accordance with the Civil Act Article 405 Paragraph 2 becomes a disposition act of a third obligor that may be deemed the same as the obligor’s act or the obligor’s disposition act to the extent that it conflicts with the exercise of obligee‘s right of subrogation. If an attachment order or a provisional attachment order against the subrogated credit is sent to a third obligor and becomes effective, a third obligor is prohibited from paying to an obligor due to attachment or provisional attachment, but only with such fact there does not occur an effect of change in the right of an obligor against a third obligor. Therefore, an attachment order or a provisional attachment order against the subrogated credit does not fall under the category of disposition act which is restricted in accordance with Article 405 Paragraph 2. On the contrary, the right disposition in the Civil Act Article 405 Paragraph 2 means the alteration of a right by the obligor, so on the basis of assignment order, the attachment obligee succeeds to the position of obligee with regard to the obligor’s credit against a third obligor like the assignment of credit under the Civil Act. Therefore, it can be seen that the assignment order against subrogated credit is prohibited in accordance with Article 405 Paragraph 2. On the contrary, the filing of a lawsuit by a subrogating obligee may be considered as substantially not different from a collection suit filed by a obligee on the basis of an order of attachment and collection in that an obligor’s credit is collected for the preservation or realization of self-credit. Besides, the execution of credit is a monetary execution, so the targeted credit shall be a right with an independent monetary value. Even if the subrogation right is exercised, it does not follow that an obligor’s subrogated credit against a third obligor is transferred to or vested in the subrogating obligee. Accordingly because the collection authority or the authority to receive the repayment cannot be converted into money through a disposition, such authority cannot be attached by nature, and, as a result, such attachment order is null and void, and the assignment order on the premise of valid attachment is also null and void. Taking into such aspects, the attitude of the Supreme Court 2015da236547 decision rendered on August 29, 2016 is justifiable, which declared that in the obligee subrogation suit if a decision ordering a third obligor to pay money to a subrogating obligee directly is fixed as final, other obligees of the obligor may attach or provisionally attach the subrogated credit before it becomes extinct due to repayment, etc. but assignment order against the subrogated credit is not valid, and a subrogating obligee’s attachment order, etc. against a third obligor targeting the collection authority or the authority to receive the repayment is null and void.