Summary
The standing to conduct litigation by subrogation and the substantive existence of the right subject to subrogation are separate determinations.
6.1The Standard by Which the Path Opens
The qualification to enter a lawsuit and the performance to be received in that lawsuit are different doors. From the preceding section, borrowing the relevant precedent on confirmation of land ownership, only the premise is carried over that a judgment in which the owner is not identified cannot serve as proof of a specific person's ownership. Now the questions are whether a person seeking to exercise another's right may conduct that lawsuit, and whether the qualification to conduct it at once constitutes the right asserted in the lawsuit. This inquiry treats separately the criteria by which the entrance to this remedy opens.
This issue starts from the way in which Article 404 of the Civil Act provides for the creditor's right of subrogation. Paragraph (1) thereof provides that "A creditor may exercise the debtor's right in order to preserve his or her own claim," while excluding rights exclusively pertaining to the person from the objects of subrogation. This wording sets as the holder of the right of subrogation the creditor seeking to preserve her own claim, as the act the exercise of another's right, namely the debtor's right, and as the condition the purpose of preserving one's own claim. Party standing, meaning the qualification to conduct in one's own name the lawsuit that the subrogating party is to conduct, is a separate matter prescribed by that wording.
Accordingly, the right to conduct a lawsuit by subrogation and the substantive formation of the right subject to subrogation must be distinguished. The entrance to this remedy opens when the claim to be preserved of subrogation and the need for preservation, or the basis of the right to conduct the lawsuit under selection and succession, are recognized. The right to conduct is the basis that opens the door to exercising another's right, and the substantive right is the basis for the performance to be received inside that door. That the former is recognized cannot be taken to mean that the latter is at once recognized.
The counterargument that, once standing has been recognized, contesting all requirements again is duplication targets the procedural inefficiency of rehearing the same requirements each time standing is separately contested, and the risk of delay by the responsible party. Yet victory on the merits cannot be established by recognition of standing alone. The qualification to open the door and the performance to be received inside the door are different objects of determination, and where the claim to be preserved of subrogation is not recognized or where there is no statutory basis for litigating for another, the channel of this remedy is closed.
In this scene, creditor A seeks to exercise debtor B's right but has not separately adduced the basis of her own claim and the need for preservation. Measured against the wording of Article 404, paragraph (1) of the Civil Act, which requires one's own claim and a purpose of preservation, in the present state of the scene, where no materials proving that basis have been produced, the basis of the right to conduct the lawsuit remains undetermined. That said, because the facts, service, and results of performance of an actual case, as well as the year, amount, and accrual date not present in the scene, have not been set, they cannot be determined from this scene. If the existence of the claim to be preserved is denied, it changes the conclusion on the standing in a subrogation lawsuit.
What this section permits is to distinguish the basis of the right to conduct from the substantive right and thereby judge the entrance to this remedy; what it does not permit is to establish, on the sole fact that the entrance is open, the performance demanded on the merits, or to translate the determination of standing into the existence of the substantive right.
6.2The Conditions That Block Relief
The question now is whether the determination that one can conduct a lawsuit at once gives rise to the right. The right to conduct a lawsuit by subrogation and the substantive formation of the right subject to subrogation are separate determinations. What is needed in this scene is to distinguish whether A may carry on the lawsuit in place of B's right, and what conditions block that position.
Article 404 of the Civil Act provides: "(1) A creditor may exercise the debtor's right in order to preserve his or her own claim; provided, that this shall not apply to rights exclusively pertaining to the person." In this wording, the subject of subrogation is the creditor, the object to be exercised by subrogation is the debtor's right, and the condition of exercise is the need to preserve one's own claim. In addition, it appends a proviso as to timing and permission: "(2) A creditor may not exercise the right under the preceding paragraph before the maturity of the claim without the permission of the court; provided, that this shall not apply to acts of preservation." Other issues in the provision are not addressed here, and only the wording relevant to this section is read.
What this provision grants is a channel through which another's right may be exercised, and the opening of that channel does not mean the same as the substantive formation of the right that is the object of exercise. Herein lies the reason one must distinguish whether a lawsuit may be conducted by subrogation from whether the target right to be conducted is formed under substantive law. Here, party standing means the qualification to conduct the relevant lawsuit in one's own name. The determination of this standing is placed with the preceding determination of the channel, while the subsequent determination of performance is placed separately. The two determinations are not established at once in the same place.
If this distinction is actually accepted, a loss follows: once standing is recognized, contesting all requirements again is duplication. The grounds needed to carry on the same lawsuit must be examined over and again, and the convenience of protecting rights by subrogation is reduced. Even so, victory on the merits cannot be established by recognition of standing alone. Where the subrogating party's claim to be preserved is not recognized or where there is no statutory basis for litigating for another, if even one of the statutory requirements is not met, the channel of relief is closed. The conclusion is maintained while the disadvantage targeted by the counterargument is left intact.
The fact confirmed in the synthetic scene is that creditor A seeks to exercise debtor B's right and has not separately adduced the basis of her own claim and the need for preservation. According to the preceding conditions, the channel opens where the claim to be preserved of subrogation and the need for preservation, or the basis of the right to conduct the lawsuit under selection and succession, are recognized, and closes where the subrogating party's claim to be preserved is not recognized or where there is no statutory basis for litigating for another. Where the legal relationship between the right holder and the conducting party has not been clarified, the matter remains undetermined. If it is confirmed that the existence of the claim to be preserved is denied, the conclusion on the standing in a subrogation lawsuit changes.
What this section permits is the distinction that the right to conduct a lawsuit by subrogation and the substantive formation of the right subject to subrogation are determined separately, and that obtaining standing in the former determination does not mean one receives the subsequent performance as well. What is not permitted is establishing victory on the merits by recognition of standing alone, and transcribing that determination as a determination on the substantive formation of the right. Where materials are lacking, the matter merely remains undetermined; it is not at once settled that no relief is possible.
6.3The Boundary That Remains When There Is No Data
It was confirmed earlier that the determination that one can conduct a lawsuit and the existence of the right must be distinguished. The remaining question is where the boundary of matters that cannot be established for want of materials lies. That is, whether the determination that one can conduct a lawsuit also means the existence of the right, and how to handle matters on which the materials for determination are not specified, are at issue. The point that the qualification to enter a lawsuit and the performance to be received in that lawsuit are different doors is the starting point of this inquiry.
It is provided that "A creditor may exercise the debtor's right in order to preserve his or her own claim. However, this shall not apply to rights exclusively pertaining to the person" (Article 404 of the Civil Act). The subject indicated by this wording is the creditor seeking to preserve her own claim, and the exercise is directed at the debtor's right. The condition is one's own claim and the need for preservation, and rights exclusively pertaining to the person are excluded. Paragraph (2) of the same Article places a restriction on exercise before maturity. This wording serves as the basis for the distinction that the right to conduct a lawsuit by subrogation and the substantive formation of the right subject to subrogation are separate determinations.
The reason the requirements for exercise prescribed by the provision and the substantive formation of the right subject to subrogation must be viewed separately is that the object of each determination differs. The right to conduct is a determination relating to the qualification to conduct the relevant lawsuit in one's own name, that is, party standing. Substantive formation is a matter of whether the right held by the debtor exists in itself. A determination recognizing the former does not substitute for a determination establishing the latter. Accordingly, the distinction holds that the determination that one can conduct a lawsuit does not also mean the existence of the right, and matters for which there are no materials are handled at that boundary.
The strongest counterargument is that, once standing has been recognized, contesting all requirements again is duplication. If a court that has already examined the qualification to conduct again inquires into the claim and the need for preservation on the merits, the same materials are handled twice, and a party who has difficulty supporting the legal relationship between the right holder and the conducting party with materials is in effect blocked at every stage. This disadvantage cannot be erased. So long as the distinction that these are separate determinations is maintained, there is no ground for regarding the latter determination as omitted.
Contrasting this fact with the requirements of the provision, where A's exercise is supposed to rest on her own claim and the need for preservation, that basis is empty. The scene does not determine which record exists among the materials on the claim to be preserved, the written selection, the succession materials, and the application to participate. Nor, where the legal relationship between the right holder and the conducting party has not been clarified, can a matter on which the materials for determination are not specified be treated at once as impossible. Here the matter is left undetermined. Only the condition is set that if the existence of the claim to be preserved is denied, the conclusion on the standing in a subrogation lawsuit changes.
The conclusion this section permits extends only to the determination that, distinguishing matters that cannot be established for want of materials from impossibility, leaves them undetermined. What it does not permit is the determination that establishes victory on the merits by recognition of standing alone. So long as the distinction is maintained that the right to conduct a lawsuit by subrogation and the substantive formation of the right subject to subrogation are separate determinations, the former determination does not substitute for the latter.
6.4The Records Needed for Determination
Does the determination that one can conduct a lawsuit also mean the existence of the right? In this scene, whether A can conduct B's lawsuit and whether, in that conduct, B's right is actually formed are different questions. Though the determination of the qualification to conduct comes first, it cannot stand in for the determination of the formation of the right as well. What must now be ascertained is what records should be required in order to allow the conduct of the lawsuit.
It is provided that "A creditor may exercise the debtor's right in order to preserve his or her own claim. However, this shall not apply to rights exclusively pertaining to the person." In this wording, the subject of the act is the creditor, the right she exercises is the debtor's, and that qualification is bound to the purpose of preserving her own claim. Rights exclusively pertaining to the person fall outside the objects of exercise. The provision states only the requirements for conducting a lawsuit by subrogation in this sentence; it does not go so far as to determine whether the debtor's right is actually formed. Hence, the door of the right to conduct and the door of the formation of the right are not the same door.
If the foregoing wording prescribes the requirements of the qualification to conduct, then the determination that those requirements are met is confined to the adjudication at the conduct stage. The author takes the view that the determination of the right to conduct a lawsuit is made solely on the basis of the materials recorded in the materials on the claim to be preserved, the written selection, the succession materials, and the application to participate. These records are, respectively, materials showing one's own claim, which is the basis of subrogation; the basis of the right to conduct under selection and succession; and the basis of the conduct carried on through participation. Filling gaps in the records by presumption is inconsistent with the method of determining the right to conduct a lawsuit.
The counterargument that, once standing has been recognized, contesting all requirements again is duplication targets the time and cost of the parties producing the same records twice and the court writing the same determination again. Taking into account also the circumstance, in collective and subrogation-based protection of rights, that the right holder cannot step forward personally, it is pointed out that the method of recognizing the qualification to conduct once and then re-examining all requirements produces an inconvenience that in effect blocks the remedy of rights. This disadvantageous aspect does not disappear. Recognition of standing is merely passing through the door of conduct; the formation of the right to receive performance has not yet been determined.
In the synthetic scene, A seeks to exercise B's right but has not separately adduced the basis of her own claim and the need for preservation. This fact matches the conditions of conduct under subrogation. One's own claim and the need for preservation are the basis of conduct prescribed by the wording of Article 404 of the Civil Act, and the scene records that that basis was not presented in the records. As a result, the determination whether A can conduct remains undetermined. Since the scene does not show whether B's right is actually formed or whether performance can be received, that item cannot be determined on this scene.
The adjudication of this section divides as follows. The stage is adjudicated solely on the basis of the materials recorded in the materials on the claim to be preserved, the written selection, the succession materials, and the application to participate, and absent records are not filled by conjecture. Even where these records are in place and the qualification to conduct by subrogation may be recognized, that recognition does not at once establish victory on the merits. Party standing means only the qualification to conduct the relevant lawsuit in one's own name.
6.5Circumstances That Change the Decision
In the relevant precedent on confirmation of land ownership, it was held that a judgment in which the owner is not identified cannot serve as proof of a specific person's ownership. The question that follows is whether the determination that one can conduct a lawsuit also means the existence of the right asserted in that lawsuit. It is also asked what change would have to come in for the existing stage determination to be reversed.
The wording in question is Article 404 of the Civil Act. It provides: "A creditor may exercise the debtor's right in order to preserve his or her own claim. However, this shall not apply to rights exclusively pertaining to the person." In this wording, the 'creditor' is the subject who will conduct the lawsuit, the 'debtor's right' is the object of exercise, and 'in order to preserve his or her own claim' is the purpose of the exercise. What the author notes in this section is the fact that the foregoing two elements and the subsequent purpose condition are placed together in a single sentence.
The structure of this provision shows that the qualification to conduct and the substance of the right are not settled at once. The determination that one can conduct a lawsuit is a matter of fixing the qualification to conduct the relevant lawsuit in one's own name, that is, party standing, and whether such a right actually exists in the debtor is a matter to be separately settled on the merits. Accordingly, the right to conduct a lawsuit by subrogation and the substantive formation of the right subject to subrogation remain separate determinations.
The loss that this counterargument fears is clear. If the same grounds are contested twice, the procedure is delayed, and the side seeking to protect rights by subrogation fails to achieve its aim in the meantime. The practical benefit of protecting the right is diminished before the repetition of procedure. Recognition of standing is the opening of the door to conducting the relevant lawsuit; it does not mean that the basis of performance has already been settled.
The fact confirmed in the synthetic scene is one. The basis corresponding to the purpose condition required by Article 404 is not visible within this scene. However, since the scene does not clarify the legal relationship between the right holder and the conducting party, what is blocked and what takes effect at the stage of conducting a lawsuit over another's right cannot be determined here. Which of the materials on the claim to be preserved, the written selection, the succession materials, and the application to participate was submitted is also unverified.
The conclusion this section permits is narrow. A determination recognizing the qualification to conduct has not settled the basis of the performance to be received in that lawsuit, and confirmation as to the basis takes place at a separate stage. Conversely, the conclusion that victory is settled by standing alone is not permitted in this section.
6.6The Strongest Counterargument and the Answer
In this scene, what must be settled at once is that the questions whether A may conduct the lawsuit in A's own name and whether, as a result, A may receive performance in respect of B's right remain separate. That A has been granted the capacity to conduct the lawsuit cannot be taken to mean that a determination has also been rendered that B holds that right.
The provision fitting this question is found in Article 404 of the Civil Act. Its paragraph (1) provides: "A creditor may exercise the rights of the obligor in order to preserve the creditor's own claim. However, this does not apply to rights exclusively personal to the obligor." Here, the party who exercises the right is the creditor, the object of the exercise is the obligor's right, and the condition is that the creditor does so in order to preserve the creditor's own claim. Its paragraph (2) requires the court's permission for an exercise before the due date arrives, while excluding acts of preservation.
These conditions correspond to the position of judging whether A may conduct the action against B. That determination goes no further than ascertaining whether A holds the qualification to exercise another's right in order to preserve A's own claim. If these two are not distinguished and are bound together as one, the result is that the determination on the right to conduct substitutes even for the determination on the substantive existence of the right. The rationale set out earlier, that a judgment confirming land ownership whose owner is not identified cannot serve as proof of a particular person's ownership, likewise presupposes the same distinction.
The strongest counterargument against this distinction takes aim at the inconvenience of duplicative litigation: that once standing is recognized, contesting all the requirements again is duplication. Such a counterargument points out that, if a person whose capacity to conduct has already been confirmed is made to establish once again, in that same lawsuit, the claim to be preserved and the necessity of preservation, time and cost are incurred once more, and the path of collective and subrogation-based rights protection is in effect blocked. The cost to which the counterargument points remains as it is, but merging the determination of the right to conduct with the determination of the substantive right cannot resolve that cost.
Conducting a lawsuit over another's right operates where the claim to be preserved and the necessity of preservation of the subrogee, or the basis for the right to conduct litigation by virtue of party selection or succession, is recognized. Conversely, where the subrogee's claim to be preserved is not recognized, or where there is no statutory ground to litigate on behalf of another, that path is blocked. The necessary records are materials on the claim to be preserved, the written selection, succession materials, and the application to participate. What materials A submitted in this scene, and what the legal relationship is between the right-holder and the person conducting the litigation, are not revealed and remain undetermined.
Then, the conclusion that standing is recognized means no more than that the qualification to conduct that lawsuit in one's own name has been opened; it has not determined whether the right that is the subject of that lawsuit actually came into existence, nor whether performance can be received. Conversely, the conclusion that standing is denied means that the door to conduct has been closed; it is not a determination that the right subject to subrogation itself does not exist. What is permitted is to view the two determinations separately; what is not permitted is to determine the latter as well on the strength of the former alone.
6.7The Link to the Application and the Dispositive Part
It has been confirmed that prevailing on the merits cannot be established by recognition of standing alone. In a scene like this, does the determination that A may conduct the action also mean a determination that B's right, contested in that lawsuit, has actually come into existence?
The provision answering this question is in Article 404 of the Civil Act. Its paragraph (1) provides that a creditor may exercise the rights of the obligor in order to preserve the creditor's own claim, and makes rights exclusively personal an exception. This provision specifies the subject of the act as the creditor, the act as the exercise of the obligor's right, and the condition as the preservation of one's own claim, respectively. Thus, what this provision speaks of is who may move another's right under what conditions.
When the provision determines who may move another's right, whether that right itself has come into existence remains a separate question. This standing merely identifies who stands at the door of the procedure that is a lawsuit; whether the right that forms the ground for the performance sought within that door has substantively come into existence must be judged separately. If the two determinations are bound together as one, the basis for the right to conduct will be treated as though it were at once the basis for the existence of the target right.
The strongest counterargument regards this dual determination as duplicative. If, after standing is recognized, all the requirements must be contested again, what has already been dealt with in the standing review is examined twice, and the inconvenience that the procedure is in effect closed to a person seeking rights protection through subrogation is also great. If, out of concern for duplication, the determination of the basis for the right to conduct is merged with the determination of the existence of the target right, the result is that the substance of the right is settled on the strength of standing.
In the synthetic scene, one fact bears on this question. In light of the condition of preservation required by Article 404 of the Civil Act, whether a basis has been presented cannot presently be confirmed On the records. Only, if the existence of the claim to be preserved is denied, the condition that would change the conclusion on standing in a subrogation action is clear. What can be determined On the records is whether such conditions are met; whether B's right has substantively come into existence is not settled by this scene alone.
The conclusion this section permits is narrow. It goes no further than that the determination assessing the qualification to conduct a lawsuit in one's own name and the determination assessing the substantive existence of the right that is the subject of that lawsuit are different doors. This conclusion neither predetermines the existence of the target right, nor conversely denies that existence, nor means that a separate determination has already been completed. What remains undetermined is left undetermined; one merely notes that such indeterminacy is not an object of the determination on the right to conduct.
6.8The Scope This Section Undertakes
Under the premise that a judgment whose owner is not identified cannot serve as proof of a particular person's ownership, it is settled here whether the determination that one may exercise a right and the existence of the right that one seeks to establish through that exercise may be regarded as the same. In this very scene, whether the determination that A may stand in the position of handling another's right carries with it the determination that B's right already substantively exists remains at issue.
As the provision answering this question, Article 404 of the Civil Act provides for the creditor's right of subrogation (Article 404 of the Civil Act). Its paragraph (1) states: "A creditor may exercise the rights of the obligor in order to preserve the creditor's own claim" (Article 404 of the Civil Act). This provision limits the subject exercising the right to the creditor, the object of exercise to the obligor's right, and the condition opening the exercise to the preservation of one's own claim. Rights exclusively personal are excluded within that limitation. Accordingly, what this provision directly determines is who may take hold of and exercise another's right under what conditions; whether the right taken as the object of exercise actually came into existence is left as a problem to be read separately from the context of this provision.
The determination obtained by following this provision concerns the right to conduct litigation, and the conclusion of this section is that this determination and the substantive existence of the right subject to subrogation are separate. Here, party standing means the qualification to conduct that lawsuit in one's own name, and this qualification determines only whether one may enter the action; it does not determine the ground for receiving performance in the action once entered. The reason the right to conduct litigation in subrogation and the substantive existence of the right subject to subrogation must be distinguished lies in this point. That A obtains the qualification to conduct in A's own name an action exercising B's right means that A is in the position to conduct that action. Yet if that position doubles as meaning that B's right has substantively come into existence, the determination that one may conduct would settle in advance the ground for performance.
Nevertheless, contesting all the requirements again after standing has been recognized may amount to duplication. If, where the right-holder and the person conducting the litigation differ, the capacity to conduct has already been carefully reviewed in another lawsuit and the same determination is repeated on the merits, limited resources and time are spent twice and the same dispute is heard twice. The value that collective and subrogation-based rights protection must be maintained even without the right-holder's direct participation also sides with this counterargument, in that substance is secured only if the capacity to conduct is broadly recognized. The convenience of reducing duplicative discussion cannot push the determination of the capacity to conduct up into the determination on the merits, and even after the qualification to exercise another's right has been recognized, the substantive existence of the right that one seeks to establish through that exercise must still be handled separately.
Returning to the synthetic scene for contrast, creditor A seeks to exercise obligor B's right, but has not separately submitted a basis for the claim to be preserved and the necessity of preservation. Since paragraph (1) of Article 404 of the Civil Act makes the preservation of one's own claim a condition of exercise, whether A meets that condition is a matter of the materials for determining the right to conduct litigation in subrogation (Article 404 of the Civil Act). If materials on the claim to be preserved are confirmed and that condition of exercise is recognized, one proceeds to the determination of the capacity to conduct, but that determination has not established the substance of B's right. The scene, however, states only that no basis for the claim to be preserved and the necessity of preservation was separately submitted; it does not determine the size of A's claim, the degree of the necessity of preservation, or the content of B's right. So long as those values are not revealed, substantive existence cannot be determined by this scene.
The conclusion this section permits is the distinction that the determination that one may conduct an action and the ground for the performance to be received in that lawsuit are different doors, and the distinction that the right to conduct litigation in subrogation and the substantive existence of the right subject to subrogation are determined separately. What this section does not permit is the conclusion that prevailing on the merits is established by the mere fact that party standing is recognized, or that the determination of the capacity to conduct carries through to the substantive existence of the right subject to subrogation. The scope this section addresses is limited to the boundary dividing the door of the qualification to conduct and the door of performance, and within that boundary, whether relief reaches the right-holder even though the right-holder and the person conducting the litigation differ is handled as a question of whether the capacity to conduct has opened the door.
6.9Application of the Text of the Provisions and the Holdings of Precedents
That conclusion conveys the distinction that the determination that one may conduct an action does not at once mean the existence of the right. The next question is which provision this distinction attaches to in the conduct of a lawsuit over another's right. What provision forms the basis for A's conduct of litigation seeking to exercise B's right, and to what condition of this scene does that provision attach?
The basis is Article 404 of the Civil Act. Its provision reads: "Article 404 (Creditor's Right of Subrogation) (1) A creditor may exercise the rights of the obligor in order to preserve the creditor's own claim. However, this does not apply to rights exclusively personal to the obligor." In this provision, the creditor is the subject exercising the right, the obligor's right is the object of exercise, and the preservation of one's own claim is the condition under which the exercise is permitted. In the relationship between A and B, the object A seeks to exercise is B's right, and the qualification for A to step forward in that exercise is bound up with the purpose of preserving A's own claim. The wording of paragraph (2) of the same Article concerning the arrival of the due date, the court's permission, and acts of preservation is not addressed; the analysis remains with the provision of paragraph (1) permitting exercise.
The conclusion is that this provision is used as the ground for determining the conduct of a lawsuit over another's right, and is not extended to other items belonging to the reasons for the judgment. Here the two stages of determination diverge. Finding the provision that forms the basis for the right to conduct litigation and judging whether the right to be exercised in that lawsuit actually came into existence are placed at different doors. The determination that A obtained the qualification to exercise B's right means passing through the former door, and the determination that B holds that right is given separately at the latter door. Since the wording of the former cannot be transplanted as it is into the latter door, the ground for determining the conduct of a lawsuit over another's right is limited to that provision.
It squarely faces the inconvenience the distinction brings. It may be criticized as duplicative to contest all the requirements again after standing has been recognized. Since A's qualification to conduct the action has already been accepted, asking again about A's own claim and the necessity of preservation may appear to demand telling the same story twice, and the danger that collective and subrogation-based rights protection is in effect blocked also remains behind. Since the provision has attached the condition "in order to preserve one's own claim" to the ground for exercise, the review of that condition is handled in its own place in the determination of standing and in the determination on the merits. It leaves the inconvenience of duplication while still observing the boundary the provision has drawn.
The facts confirmed in the synthetic scene are the part to be placed against the conditions of this provision. The aspect of A seeking to exercise B's right forms the shape of a case of exercising the obligor's right, but A has not separately submitted a basis for the claim to be preserved and the necessity of preservation. Accordingly, it cannot be determined which of the records — materials on the claim to be preserved, the written selection, succession materials, and the application to participate — supports A's own claim and the necessity of preservation. Since the legal relationship between the right-holder and the person conducting the litigation has not been revealed, whether A's requirements for conducting litigation are met remains undetermined. The case in which the subrogee's claim to be preserved is not recognized, or where there is no statutory ground to litigate on behalf of another, is the designated blocking condition, and if the existence of the claim to be preserved is denied, it changes the conclusion on standing in a subrogation action; but this scene alone cannot be taken to show that such denial has occurred.
Accordingly, the conclusion this section permits remains limited to using the provision of Article 404 of the Civil Act as the ground for determining the conduct of a lawsuit over another's right and not attaching the reasons for the judgment outside the scope of that provision. Even after separating the determination of the basis for the right to conduct litigation from the determination of the substantive existence of the right subject to subrogation, A's standing in the subrogation action is placed in the position where it is recognized only once the basis for the claim to be preserved and the necessity of preservation has been confirmed. What remains provisional, together with the concluding sentence of the preceding section, is merely the designated conditional distinction; A's prevailing on the merits or the determination of performance does not follow.
6.10Fine Distinctions Within the Stage
이 장면에서 남의 권리에 대한 소송수행 안에서 다시 나누어 판정할 부분이 무엇인지 묻는다.
민법 제404조의 문언은 그 가리키는 주체와 행위, 조건을 분명히 한다. 「채권자는 자기의 채권을 보전하기 위하여 채무자의 권리를 행사할 수 있다. 그러나 일신에 전속한 권리는 그러하지 아니하다.」라는 문언에서, 행위의 주체는 채권자이고 그가 행사하는 대상은 채무자의 권리이다. 그 문언은 채권자가 그 권리를 행사할 수 있게 하는 조건으로 자기 채권의 보전을 내세운다(민법 제404조). 일신 전속권의 예외만 둘 뿐, 다른 조건을 더 읽어 넣지 않는다.
이 문언이 내세운 보전 조건과 소송수행권의 인정은 연결되지만, 수행권의 인정과 대위 대상 권리의 실체적 성립은 별도의 판단이다. 저자는 이 두 단계를 구별해야 한다고 본다. 소를 수행할 수 있다는 판단은 해당 소송을 자기 이름으로 이끌 자격을 주는 데 그치고, 그 소송에서 채무자의 권리가 실제로 성립하는지까지 미리 확정하지 않는다(민법 제404조). 판정은 작동하는 경우, 막히는 경우, 미확정인 경우의 조건에 한정한다.
자격을 인정받고도 다시 모든 요건을 다투는 것은 중복이라는 반론이 겨냥하는 손실은 권리 보호의 지연과 비용이다. 남의 권리를 행사하는 소송에서 수행자가 이미 자격을 확인받았는데 그때마다 근거를 다시 내야 한다면, 집단적·대위적 권리보호가 사실상 막힌다. 수행권의 인정은 그 소송의 문을 여는 판단이고, 급부의 인정은 그 안에서 다투는 판단이므로, 앞 단계의 확정이 뒤 단계의 다툼까지 없애지 않는다.
합성 장면에서 확인할 수 있는 사실은 채권자 A가 채무자 B의 권리를 행사하려 하면서도 자기 채권과 보전 필요의 근거를 따로 내지 않았다는 점이다. 민법 제404조가 요구하는 보전 조건에 대조하면, 작동하는 경우인 대위자의 피보전채권과 보전 필요의 근거가 인정되는 경우, 막히는 경우인 대위자의 피보전채권이 인정되지 않거나 타인을 위하여 소송할 법정 근거가 없는 경우, 미확정인 경우인 권리자와 수행자의 법률관계가 밝혀지지 않은 경우 중 어디에 놓일지 장면만으로는 정해지지 않는다.
이 절이 허용하는 결론은 수행권과 실체권을 나누어 판정하고, 그 세부 구분을 작동하는 경우·막히는 경우·미확정인 경우의 명시된 조건에 묶어 두는 데까지이다. 적격의 인정이 곧 급부의 확정으로 이어진다고 읽는 것은 허용되지 않는다. 다만 실제 사건의 승패나 회수 결과까지 여기서 단정하지 못하며, 합성 장면에 없는 사실은 미확정으로 남는다.
6.11Synthesis of Effectiveness, Blockage, and Undetermination
이 물음 앞에서 대위의 소송수행권과 대위 대상 권리의 실체적 성립은 별도의 판단이라고 정리한 결론이 이어진다. 이 장면에서 남의 권리를 대신 수행하려는 자격과 그 수행 끝에 받을 급부를 나누어 판단하는 기준을 확인한다.
제1항은 채권자가 자기의 채권을 보전하기 위하여 채무자의 권리를 행사할 수 있고 일신에 전속한 권리는 제외한다고 정한다(민법 제404조). 제2항은 채권의 기한이 도래하기 전에는 법원의 허가 없이 전항의 권리를 행사하지 못하되 보전행위는 예외로 한다(민법 제404조). 여기서 행사의 주체는 채권자를, 행사의 대상은 채무자의 권리를, 행사의 조건은 자기 채권의 보전을 각각 가리킨다.
이 문언은 대위로 소를 수행할 수 있는 근거와 대위의 대상이 되는 권리의 실체적 성립을 따로 묻도록 만든다. 앞 문언에서 정한 행사의 조건은 수행 자격의 문을 여는 근거이고, 채무자 B의 권리 자체가 성립하는가는 별도의 본안 판단이다. 그래서 두 단계를 합치면 적격 인정만으로 본안 승소를 확정할 수 없게 된다. 같은 이유로 소를 수행할 수 있다는 판단이 권리의 존재까지 뜻하지는 않으며, 그 판단은 해당 소송을 자기 이름으로 수행할 자격, 곧 당사자적격의 문제로 남는다.
자격을 받고도 다시 모든 요건을 다투는 것을 중복이라고 보는 반론이 이 지점을 겨냥한다. 대위의 문을 한 번 통과한 수행자가 매 단계마다 피보전채권과 보전 필요를 다시 입증해야 한다면 절차가 늘어지고, 권리자의 직접 참여를 전제로 하면 집단적·대위적 권리보호가 사실상 막힌다는 불편도 크다. 수행 자격의 근거를 심사하는 판단과 급부를 명하는 본안 판단은 서로 다른 문이며, 반론이 지적한 중복의 부담을 줄이는 방법으로 뒤 단계를 앞 단계에서 대신 확정할 수는 없다.
이 사실만으로는 대위의 피보전채권과 보전 필요가 인정되는지, B를 위하여 소송할 법정 근거가 있는지가 정해지지 않는다. 기록으로 요구되는 것은 피보전채권 자료·선정서·승계 자료·참가신청의 종류이며, 이 장면에 그 자료들의 실제 제출 여부는 담겨 있지 않다. 따라서 권리자와 수행자의 법률관계가 밝혀지지 않은 현재의 판정은 미확정으로 남고, 자료가 갖추어져 피보전채권과 보전 필요 또는 선정·승계에 따른 소송수행권의 근거가 인정되면 실효의 조건이, 피보전채권이 부정되거나 타인을 위하여 소송할 법정 근거가 없으면 차단의 조건이 각각 성립한다.
이 구별이 허용하는 결론은 조건부의 분리에 한정된다. 수행권의 근거가 인정된다고 대위 대상 권리의 실체적 성립까지 확정되는 것은 아니며, 반대로 수행 자격이 막혔다고 채무자의 권리가 부정되는 것도 아니다. 미확정은 자료 부족을 구제 불능으로 바꾸지 않고, 법률관계가 밝혀질 때까지 판정을 보류하는 상태로 둔다.
6.12이 권의 결론과 남는 물음
앞 단계에서 소를 수행할 수 있다는 판단은 권리의 존재까지 뜻하지 않는다는 점이 정리되었다. 이 장면에서 남의 권리를 대신 행사하려는 자격과 그 행사의 목적이 되는 권리 자체는 서로 다른 질문이 된다.
"채권자는 자기의 채권을 보전하기 위하여 채무자의 권리를 행사할 수 있다. 그러나 일신에 전속한 권리는 그러하지 아니하다. 채권자는 그 채권의 기한이 도래하기 전에는 법원의 허가없이 전항의 권리를 행사하지 못한다. 그러나 보전행위는 그러하지 아니하다."라고 규정한다. 이 문언은 채권자가 남의 권리를 행사하는 주체가 될 수 있음을 정하면서도, 그 행사가 자기 채권의 보전을 위하여 있어야 함을 전제로 삼는다. 문언이 떼어 놓은 것은 대위 행사의 자격과 그 행사의 대상이 되는 채무자의 권리다.
이 조문이 자격의 근거를 제공한다고 해서 대위로 행사할 권리까지 성립한 것으로 보일 수 없다. 저자의 판단은 여기서 갈린다. 앞 문장이 다룬 것은 자기 이름으로 그 소송을 수행할 수 있는가이고, 뒤 문장이 다룰 것은 행사의 목적이 되는 채무자의 권리가 실제로 성립했는가이다.
자격을 인정받고도 다시 모든 요건을 다투는 것은 중복이라는 반론이 이 구별을 겨눈다. 한 번 소송수행권의 근거를 심사한 법원이 본안의 요건을 다시 다루는 것은 같은 절차에서 불필요한 이중 심사라는 것이다. 특히 권리자의 직접 참여가 불가능한 사정에서 대위나 선정에 의한 수행만 남는 경우, 수행의 근거와 권리의 성립을 따로 가르면 집단적·대위적 권리보호가 사실상 막힌다는 불만이 남는다. 수행권의 근거가 인정된다는 판단은 그 소송에서 받을 급부까지 허용한 것은 아니므로, 중복이라는 지적만으로 두 판단을 하나로 뭉갤 수 없다.
이 장면의 기록을 대조하면, 피보전채권 자료·선정서·승계 자료·참가신청 가운데 무엇이 준비되었는지 밝혀져 있지 않다. 자기 채권과 보전 필요의 근거를 따로 내지 않았다는 사실만으로 대위의 피보전채권이 부정된다고 단정할 수 없고, 반대로 인정되었다고 볼 수도 없다. 권리자와 수행자의 법률관계가 밝혀지지 않은 경우 이 절의 판단은 미확정으로 남는다. 대위의 피보전채권과 보전 필요 또는 선정·승계에 따른 소송수행권의 근거가 인정되는 경우 수행의 길이 열리고, 대위자의 피보전채권이 인정되지 않거나 타인을 위하여 소송할 법정 근거가 없는 경우 그 길은 막힌다.
이 절이 허용하는 것은 수행권의 근거가 인정된다고 해서 실체적 권리까지 확인된 것으로 보지 않는 구별이다. 이 절이 허용하지 않는 것은 그 구별을 인정했다는 것만으로 본안에서 승소할 수 있다는 결론이나, 반대로 자격만 인정되면 권리를 입증할 필요가 없다는 결론이다. 법적 통로가 열렸다는 판단은 급부를 받아낼 수 있다는 성과로 옮겨 읽히지 않는다. 앞의 구별이 지키는 것은 판단의 단계이고, 그 단계가 끝난 뒤에 무엇이 남는지는 별도의 문제로 남는다. 이미 진행 중인 소와 같은 소를 다시 낼 수 있는가?
Statutes referred to
Questions left open
- 소송수행권의 확대가 권리자의 의사와 충돌할 때 어느 보호장치가 필요한가?
- 선정 취소 이후의 소송행위는 어떻게 다룰 것인가?
- 대위가 권리자의 자율성을 침해하는 경계는 어디인가?