beta
(영문) 서울고등법원 2017.02.03 2014나49809

계약금 반환

Text

1. Of the judgment of the court of first instance, the conjunctive claim based on subrogation is revoked, and the aforementioned conjunctive claim is revoked.

Reasons

1. The reasoning of the judgment of the court of first instance cited in this case is the same as the ground of the judgment of the court of first instance, except for the following parts to be cited or added, thereby citing it in accordance with Article 420 of the Civil Procedure Act.

The letter of the judgment of the court of first instance (based on the recognition) in the part of the sixth part of the judgment of the court of first instance shall be divided into “each description or image of evidence Nos. 1 through 4, 8 through 10”.

No. 7 of the judgment of the court of first instance, the “preliminary” of the 8th Preliminary shall be deemed to be the “first Preliminary”, and the “preliminary” of the 1st Preliminary shall be deemed to be the “second Preliminary” of the 1st Preliminary.

Of the 11th judgment of the first instance, the case No. 2014Gahap669 was remanded to the first instance court after the appellate judgment, and the Seoul Central District Court rendered a judgment dismissing K's claim on the ground that N's joint tort is not recognized on January 12, 2017.

(2015Gahap17086). The following is added to the judgment of the court of first instance No. 13 (D).

E) In a creditor subrogation lawsuit, where the right of the creditor to be preserved by subrogation against the debtor is not acknowledged, the creditor himself/herself becomes the plaintiff and the debtor’s right to the third debtor cannot be exercised against the third debtor, and such subrogation lawsuit is unlawful and dismissed (see, e.g., Supreme Court Decision 94Da14339, Jun. 24, 1994). As seen earlier, the Plaintiff’s preserved claim against N is not acknowledged, and thus, this part of the conjunctive claim is unlawful.

2. Conclusion, the plaintiffs' primary claims and the second preliminary claims are all dismissed as they are without merit, and the first preliminary claims are dismissed as they are illegal.

The judgment of the first instance is just in conclusion with respect to the main claim and the second preliminary claim, but it is inappropriate in conclusion with respect to the first preliminary claim.

Therefore, the judgment of the court of first instance on the preliminary claim.