대위소송으로 인한 소송경합과 원고적격

Abstract

The aim of this paper is to figure out a reasonable standard to deal with the collision of actions related to exercises of subrogation right of an obligee. Normally, the collision of actions means only the situation where two or more actions are pending simultaneously, but in this paper it encompasses the situation where the ruling of an action is already finalized. The scholarly traditional approach applies the doctrines of prevention of duplicate actions and res judicata to the above mentioned collision of actions. But nowadays the approach that the doctrine of standing should be applied is getting stronger and stronger in the academia, and the Supreme Court also adopted this approach in some types of the collision of actions. This paper claims that the traditional approach is better than the standing approach and should be the standard to deal with the collision of actions, in that ① the standing approach lacks concrete statutory bases to back up its theory, ② the standing approach is not in harmony with the general rules on the ordinary collision of actions set by the Act of Civil Procedure of our country, ③ despite the anticipation of the supporters, the outcome of application of the standing approach sometimes goes against with the outcome of application of the traditional approach and creates confusions, ④ the standing approach disturbs operations of the current debt collection system which embraces the equal treatment of creditors at its heart, ⑤ by denying the right of joint action intervention, the standing approach neglects those who lose standing by its application.