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(영문) 대법원 2017.07.11 2014다89355

손해배상 등

Text

The part of the judgment of the court below concerning the claim for recovery by subrogation of creditor among the conjunctive claims shall be reversed.

Reasons

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. As to the grounds of appeal on the primary claim, the lower court rejected all the Plaintiffs’ assertion that the instant investment agreement that was concluded by G, which is only one of the Defendant’s joint representative directors, has no effect on the Defendant, and that the Defendant delegated the right to represent the Defendant solely to G, or ratified the said investment agreement ex post facto, even if not, the said investment agreement should be borne by the apparent representative director under Article 395 of the Commercial Act, and thus, the said investment agreement also remains effective on the Defendant.

In light of the relevant legal principles and records, the lower court did not err in its judgment by misapprehending the legal doctrine regarding party interrogation or by misapprehending the legal doctrine regarding joint representative director, or by misapprehending the legal doctrine regarding logical and empirical rules.

2. As to the ground of appeal on the conjunctive claim

A. As to the allegation in the grounds of appeal on the part of a claim for restitution based on subrogation, the obligee may exercise the obligor’s right on behalf of the obligor in order to preserve the obligor’s claim against the obligor. In cases where the obligee is closely related to the obligee’s right to preserve and the obligor’s right to exercise the obligee’s right in subrogation is likely to be unable to obtain the complete satisfaction of the obligee’s claim unless the obligee exercises his/her right on behalf of the obligor, and where it is necessary to ensure the effective implementation of the obligor’s right in subrogation, barring special circumstances, such as that the exercise of the obligee’s right of subrogation may result in unfair interference with the obligor’s act of free property management (see Supreme Court Decision 201Da1

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