채권자대위소송에서의 확정판결의 효력에 관한 고찰 ― 판례를 중심으로 ― = A Study on the Effect of a Final and Conclusive Judgment in the Lawsuit based on an Obligee’s Right of Subrogation to an Obligor ― With Special Reference to Cases ―

다국어 초록 (Multilingual Abstract)

In the case of an obligee’s subrogation lawsuit, which is premised on the obligee's legal relationship with an obligor and the obligor’s legal relationship with a garnishee, it is debated what effect the existence of a final and conclusive judgment concerning one of the legal relationship between the obligee and the obligor and the legal relationship between the obligor and the garnishee will have on the lawsuits concerning the other. From the perspectives that the obligee’s subrogation lawsuit falls under the third party standing in a litigation and the obligor’s right to the garnishee constitutes the litigation matter, I reviewed by dividing it into three cases that the judgment on the secured claim was finalized first, the judgment in the obligee’s subrogation lawsuit was finalized first, and the judgment between the obligor and the garnishee was finalized first, and then by dividing each case into two cases where the judgment of rejection was confirmed and the judgment on the merits was confirmed.
When the final and conclusive judgment of a previous litigation is the judgment of rejection, it should be seen that the effect of res judicata of the judgment in the previous litigation is not binding on a subsequent litigation except in cases where the garnishee files a lawsuit against the obligee for a claim contrary to the previous litigation after the obligee’s subrogation lawsuit has been rejected grounds of non-existence of the secured claim. If the final and conclusive judgment of the previous litigation is the judgment on the merits, it should be determined whether the effect of res judicata of the judgment in the previous litigation is binding on the subsequent litigation by examining whether the subsequent litigation falls within the objective and subjective extent of res judicata which has been generated by the judgment in the previous litigation. Even if the effect of res judicata of the judgment in the previous litigation is not binding on the the subsequent litigation, it would be reasonable to think that the court of the the subsequent litigation may evaluate by its free conviction the verifiability of the judgment in the previous litigation.

참고문헌 (Reference)

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