In which the subject matter is a thing which the obligor must deliver to the obligee.

Subrogation (대위/代位) means a transfer of a position or right on a certain condition under the Civil Act[1] (민법/民法) and the Commercial Act.[2] (상법/商法).

So the right to be entitled to subrogate something is referred to as the right of subrogation (대위권/代位權).

[One sentence tip] 대위란 타인에 속한 권리를 자기의 이름으로 행사하는 것을 말하며 그러한 권리를 대위권이라 한다.

Contents

• 1 Keywords
• 2 Types of subrogation
  • 2.1 Under the Civil Act
  • 2.2 Under the Commercial Act
• 3 Registration by subrogation
• 4 Payment by subrogation
• 5 References

Keywords

subrogation, obligor and obligee, entitlement, the insurer and the insured, registration or payment by subrogation

Types of subrogation

The subrogation of a position or right usually occurs in the following manners:

Under the Civil Act

• An obligee (채권자/債權者) may subrogate the right of the obligor to preserve his claim.[3]
• A person who has performed an obligation (변제자/辨濟者) may exercise the rights of the obligee.[4]
• A person who has paid damages in full to an obligee (손해배상자/損害賠償者) may subrogate the position of the obligee.[5]
• The mortgagee next in priority (공동저당권의 차순위자/次順位者) may exercise the right of the prior mortgages by subrogation.[6]
• The subrogation in rem (물상대위/物上代位) means that the effect of security interest in rem shall reach the replacement of such secured articles.[7]

Under the Commercial Act

• The insurer (보험자/保險者) which has paid the whole insured amount acquires the rights of the insured to the subject-matter.[8]
• The insurer acquires all the rights of the insured subject-matter[9] insured by virtue of the abandonment (위부/委付)[10].

Registration by subrogation

The registration by subrogation (대위등기/代位登記) takes place when the obligor's entitlement to apply for registration may be subrogated to the obligee pursuant to Article 404 of the Civil Act.[11] Articles 52, 119 and 131-2 of the Real Estate Registration Act.

Payment by subrogation

Payment by subrogation (대위변제/代位辨濟) payment by a fiance company, which guarantees the payment in place the obligor (대지급/代支給).

References

1. ↑ The English translation of the Act is available here.
2. ↑ The English translation of the Act is available here.
3. ↑ Article 404 (Obligee's Right of Subrogation to Obligor) of the Civil Act (1) An obligee may, in order to preserve his claim, exercise the rights belonging to the obligor: Provided, That this shall not apply to such rights as are strictly personal to the obligor. (2) Before a claim becomes due, the obligee cannot exercise the rights mentioned in the preceding paragraph without the court s permission: Provided, That this shall not apply to an act of preservation.
4. ↑ Article 480 (Voluntary Subrogation by Person Who has Performed Obligation) of the Civil Act (1) A person who has performed an obligation on behalf of the obligor may be subrogated to the rights of the obligee with the consent of the latter, which should be obtained simultaneously with the performance. (2) The Articles 450 through 452 shall apply mutatis mutandis to the case mentioned in the preceding paragraph. Article 481 (Constructive Subrogation by Act of Person Who has Performed Obligation) A person who has a legitimate interest to effect performance shall be by operation of law subrogated to the rights of the obligee by effecting the performance.
5. ↑ Article 399 (Obligor’s Subrogation to Obligee owing to Compensation for Damages) of the Civil Act If an obligee has received by way of damages the full value of the thing or right which forms the subject of the claim, the obligor shall ipso jure be subrogated to the position of the obligee in respect of such thing or right.
6. ↑ Article 368 (Joint Mortgages and Dividend of Proceeds thereof, Subrogation of Mortgagee Next in Priority) of the Civil Act (1) Where two or more immovables are mortgaged to secure one claim and the proceeds of the auction are to be applied simultaneously to its satisfaction, the burdens in respect of the obligation shall be divided in proportion to the proceeds of the auction sale of each immovable. (2) If the proceeds of the auction sale of part of the immovables mentioned in the preceding paragraph are to be applied, the mortgagee may obtain full satisfaction of his claim out of the same; in such case the mortgagee next in priority may exercise the right of the prior mortgages by subrogation to the extent of the amount which the latter would have received out of other immovables in accordance with the provisions of the preceding paragraph.
7. ↑ Article 342 (Exercise of Pledge against Things Other than Pledged Articles) of the Civil Act A pledge may also be exercised against money or other things which the pledger is entitled to receive by reason of the loss, damage or expropriation of the pledged article. In such case, an attachment must be levied thereon prior to their payment or delivery. Article 370 (Provisions Applied Mutatis Mutandis) The provisions of Articles 214, 321, 333, 340, 341 and 342 shall apply mutatis mutandis to mortgages.
8. ↑ Article 681 (Subrogation by Insurer concerning Subject-Matter of Insurance) of the Commercial Act If the subject-matter of insurance has been totally destroyed, the insurer which has paid the whole insured amount shall acquire the rights of the insured to the subject-matter: Provided, That in case where only a part of the insurable value has been insured, the rights which are to be acquired by the insurer shall be determined according to the ratio of the insured amount to the insurable value.
9. ↑ Article 718 (Effect of Abandonment) of the Commercial Act (1) The insurer shall, by virtue of the abandonment, acquire all the rights of the insured subject-matter insured. (2) When the insured has effected an abandonment, he shall deliver all the documents relating to the subject-matter insured to the insurer.
10. ↑ 위부란 해상보험의 피보험자가 보험목적물의 전손(全損) 여부가 분명하지 않은 경우에, 보험금 전액을 지급받기 위하여 그 목적물을 보험자에게 이전하는 것을 말한다.
11. ↑ See supra note 3.

Is that in which the subject matter is a thing which the obligor must deliver?

In which the subject matter is an act to be done or not to be done?

What is the subject matter of an obligation?

What are the obligation of the obligor in relation to personal obligation?