Open Decision Ledger · Civil obligations & remedies
Subrogation not barred by a suit dismissed for want of a members' resolution
Supreme Court, Oct. 25, 2018, 2018Da210539 (judgment)
Case name: 공탁금출급권자확인
Official text on the National Law Information Center
Question
May a creditor subrogate to a right that the debtor has already exercised in litigation against the third-party debtor, and does a suit brought in the name of an unincorporated association debtor, dismissed for want of a members' resolution, count as the debtor having exercised that right?
Holding
No to both. A creditor may exercise the subrogation right only where the debtor does not exercise the right itself, so once the debtor has already brought the right before a court, the creditor cannot subrogate to it. Where a suit brought in the name of an unincorporated association concerned common property and was dismissed as defective for want of special authorisation to sue, without a members' resolution, there was no decision of the association to sue, and the debtor is not treated as having exercised the right.
Summary of the holding, verbatim
채권자대위권은 채무자가 스스로 제3채무자에 대한 권리를 행사하지 아니하는 경우에 한하여 채권자가 자기의 채권을 보전하기 위하여 행사할 수 있는 것이어서, 채권자가 대위권을 행사할 당시에 이미 채무자가 그 권리를 재판상 행사하였을 때에는 채권자는 채무자를 대위하여 채무자의 권리를 행사할 수 없다.
Unofficial English translation
The right of subrogation may be exercised by the creditor for the purpose of preserving the creditor's own claim only where the obligor does not itself exercise the right against the third-party obligor, and accordingly, where, at the time the creditor exercises the right of subrogation, the obligor has already exercised that right in court, the creditor cannot exercise the obligor's right by subrogating the obligor.
Disposition
Reversed and remanded Stated in the decision
원심판결을 파기하고, 사건을 대구지방법원 본원 합의부에 환송한다.
Unofficial English translation
The judgment of the court below is reversed, and the case is remanded to the collegiate panel of the Daegu District Court main court.
Form of the test
Elements stated Stated in the decision
비법인사단이 사원총회의 결의 없이 제기한 소는 소제기에 관한 특별수권을 결하여 부적법하고, 그 경우 소제기에 관한 비법인사단의 의사결정이 있었다고 할 수 없다.
Unofficial English translation
An action filed by an unincorporated association without a resolution of the general meeting of members is improper for lack of special authorization for the filing of an action, and in such a case it cannot be regarded that there was a decision of will of the unincorporated association regarding the filing of an action.
Factors
- 채무자가 스스로 제3채무자에 대한 권리를 행사하지 아니하는 경우에 한하여
- 채권자가 대위권을 행사할 당시에 이미 채무자가 그 권리를 재판상 행사하였을 때에는
- 비법인사단이 사원총회의 결의 없이 제기한 소는 소제기에 관한 특별수권을 결하여 부적법하고
- 사원총회의 결의 없이 총유재산에 관한 소가 제기되었다는 이유로 각하판결을 받고 그 판결이 확정된 경우에는
Unofficial English translation
• only where the obligor does not itself exercise the right against the third-party obligor
• where, at the time the creditor exercises the right of subrogation, the obligor has already exercised that right in court
• an action filed by an unincorporated association without a resolution of the general meeting of members is improper for lack of special authorization for the filing of an action, and
• where an action concerning property owned in common has been filed without a resolution of the general meeting of members and a judgment dismissing the action on procedural grounds has been rendered and has become final and conclusive
Relation to precedent
Follows earlier decisions Stated in the decision
대법원 2009. 3. 12. 선고 2008다65839 판결(공2009상, 450)
Unofficial English translation
Supreme Court Decision 2008Da65839 decided March 12, 2009 (Gong 2009 Sang, 450)
Decisions referred to
대법원 2007. 7. 26. 선고 2006다64573 판결(공2007하, 1353), 대법원 2009. 3. 12. 선고 2008다65839 판결(공2009상, 450)
Burden of proof
Not addressed Not in the decision
Open question and revisit condition
If the debtor asserts the right against the third-party debtor out of court, without bringing a suit, does that also bar the creditor's subrogation?
The remand judgment of the collegiate panel at the Daegu District Court's main seat will show how the other requirements of the subrogation action were examined. A later Supreme Court decision on what counts as the debtor exercising a right, or an amendment to Article 404 of the Civil Act or Article 52 of the Civil Procedure Act, would call for this entry to be read again.
Cross-family AI independent reading & axis check
7 of 8 axes matched GPT-6 Astra (OpenAI, codex CLI) · 2026-10-26
A reader from another model family (GPT-6 Astra), given the official text but not the primary reading, agreed on 7 of the 8 axes; the readings differed on axis 8 (open question and revisit condition).
Axis 8 (Open question and revisit condition): Primary “If the debtor asserts the right against the third-party debtor out of court, without bringing a suit, does that also bar the creditor's subrogation?” vs Independent “How would a subsequent general meeting resolution ratifying the debtor association's action affect an already pending subrogation action?”
The primary asks whether out of court assertion without suit bars subrogation while the independent asks about later ratification by resolution so they point to different issues.
채권자대위권은 채무자가 스스로 제3채무자에 대한 권리를 행사하지 아니하는 경우에 한하여 채권자가 자기의 채권을 보전하기 위하여 행사할 수 있는 것이어서, 채권자가 대위권을 행사할 당시에 이미 채무자가 그 권리를 재판상 행사하였을 때에는 채권자는 채무자를 대위하여 채무자의 권리를 행사할 수 없다.Raw responses and comparison record: Protocol · Blind readings (JSONL) · Axis comparison (JSONL) · SHA-256 (JSON)
Lower-court contrast & scope of application
Lower-court reading vs. Supreme Court holding
Lower-court context: The Daegu District Court, in its judgment of 24 January 2018 (2017Na300211), held that the community association, the debtor, had brought a suit against the third-party debtor seeking confirmation of the deposit withdrawal right on which the plaintiff relied as the right to be subrogated, and that suit was dismissed on 22 September 2017. Because the debtor had therefore already exercised the asserted right in litigation when the plaintiff exercised the subrogation right, the court below held that the plaintiff's subrogation action was procedurally improper.
Supreme Court standard: The Supreme Court held that this reading could not stand. The dismissal was given for want of special authorisation to sue, as the suit concerned common property and no members' resolution had been passed, so there was no decision of the unincorporated association to sue and the debtor cannot be said to have exercised the right itself. The court below should have gone on to examine the other requirements of the subrogation action; by resting only on the earlier suit, it misapprehended the law on the requirement that the debtor not exercise the right, with an effect on the judgment, and the case was reversed and remanded to the collegiate panel at the Daegu District Court's main seat.
Distinguishing conditions
- A case in which the debtor's earlier suit against the third-party debtor was determined on the merits rather than dismissed for want of special authorisation to sue.
- A suit brought by an unincorporated association with a members' resolution, since the Court rested on the absence of that resolution.
- A case in which the dismissal of the debtor's suit had not become final when the creditor exercised the subrogation right.
Record verification notes
Set the earlier suit against the conditions the Court used: the name it was filed in, whether a members' resolution authorised it, and whether the resulting judgment had become final. Then gather what bears on the other requirements of the subrogation action, since the Court remanded for those and decided nothing about them. Confirm also which right and which third-party debtor the file concerns, given that the compensation deposit of KRW 20,129,400 was made to an unnamed payee and the land was later registered to the Republic of Korea.
From the official text
Points at issue
채무자가 제3채무자에게 이미 재판상 행사한 권리를 채권자가 채무자를 대위하여 행사할 수 있는지 여부(소극) 및 비법인사단인 채무자 명의로 제기된 제3채무자를 상대로 한 소가 사원총회 결의가 없었다는 이유로 각하되어 판결이 확정된 경우, 채무자가 스스로 제3채무자에 대한 권리를 행사하였다고 볼 수 있는지 여부(소극)
Unofficial English translation
Whether a creditor may exercise, by subrogating the obligor, a right that the obligor has already exercised in court against the third-party obligor (negative), and whether, where an action filed in the name of the obligor, an unincorporated association, against the third-party obligor was dismissed on procedural grounds on the ground that there was no resolution of the general meeting of members and the judgment became final and conclusive, the obligor can be regarded as having exercised the right against the third-party obligor itself (negative)
Summary of the holding
채권자대위권은 채무자가 스스로 제3채무자에 대한 권리를 행사하지 아니하는 경우에 한하여 채권자가 자기의 채권을 보전하기 위하여 행사할 수 있는 것이어서, 채권자가 대위권을 행사할 당시에 이미 채무자가 그 권리를 재판상 행사하였을 때에는 채권자는 채무자를 대위하여 채무자의 권리를 행사할 수 없다. 그런데 비법인사단이 사원총회의 결의 없이 제기한 소는 소제기에 관한 특별수권을 결하여 부적법하고, 그 경우 소제기에 관한 비법인사단의 의사결정이 있었다고 할 수 없다. 따라서 비법인사단인 채무자 명의로 제3채무자를 상대로 한 소가 제기되었으나 사원총회의 결의 없이 총유재산에 관한 소가 제기되었다는 이유로 각하판결을 받고 그 판결이 확정된 경우에는 채무자가 스스로 제3채무자에 대한 권리를 행사한 것으로 볼 수 없다.
Order
원심판결을 파기하고, 사건을 대구지방법원 본원 합의부에 환송한다.
Unofficial English translation
The judgment of the court below is reversed, and the case is remanded to the collegiate panel of the Daegu District Court main court.
Provisions referred to
민법 제276조 제1항, 제404조, 민사소송법 제52조
Read 2026-10-26 · Cross-read 2026-10-26. All quotes matched against the official text. The Chinese-character placeholders the court used for anonymised parties are given in their Korean readings, and parenthetical Chinese-character glosses are omitted.
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