[손해배상][집11(1)민,275]
(a) Where a local government fails to appropriate funds for compensation for damage in its budget and an obligor's insolvency as a requirement to exercise a creditor's subrogation right;
(b) the burden of proof of the obligee’s subrogation.
In Section 1 of this article, "...." means the cases where a claim is a monetary claim or it is inevitable to claim the damage claim in the case concerned, and the creditor needs to prevent the decrease of general property due to his insolvent.
Article 404 of the Civil Act
Republic of Korea (Attorney Han-soo, Counsel for defendant-appellee)
Manology (Attorney Choi Dong-dong et al., Counsel for the defendant-appellant)
Gwangju High Court Decision 62Na317 delivered on February 5, 1963
The appeal is dismissed.
The costs of appeal are assessed against the plaintiff.
The first ground for appeal by the plaintiff's agent is examined.
However, in Article 404 (1) of the Civil Code, "... to preserve a claim of ........" refers to cases where the claim is money or the claim for damages is bound to be due to the debtor's insolvency, and it is necessary to prevent the decrease in the general property due to the debtor's insolvency. Thus, since it cannot be said that it does not go against the requirements for the exercise of the above creditor's subrogation right because it is a public corporation and its budget does not include the financial resources for the damages, it cannot be said that it does not go against the requirements for the exercise of the above creditor's subrogation right. Further, the creditor must prove the existence of the requirements for the exercise of the subrogation right, and the other party must prove the lack of this requirements as a defense, it cannot be said that there is an unlawful act of disregarding the party's attention in the original judgment, and since the court below cannot be deemed to be insolvent, since it did not urge the plaintiff to prove the insolvency, it cannot be said that all of its arguments are unlawful.
The second ground of appeal is examined.
However, as mentioned above, the plaintiff's exercise of the right of subrogation on the merits of the case did not meet the requirements, so even if there was a violation of the rules of evidence, such as family litigation theory, even though the fact finding that the original judgment was added without necessity, it does not affect the result of the original judgment, it shall not be adopted.
Therefore, it is so decided as per Disposition by the assent of all participating judges in accordance with Articles 400, 395, 384(1), 89, and 95 of the Civil Procedure Act.
The judges of the Supreme Court (Presiding Judge) Lee Young-sapon (Presiding Judge) Man-man Man-man Man-man