(영문) 창원지방법원 2008. 12. 5. 선고 2007나11136 판결[근저당권말소][미간행]
Plaintiff (Law Firm Lour, Attorneys Park Sung-sung et al., Counsel for the plaintiff-appellant)
Defendant (Public-Service Advocates, Counsel for defendant-appellant)
November 20, 2008
Changwon District Court Decision 2007Kadan3904 decided October 9, 2007
1. The plaintiff's appeal is dismissed.
2. The costs of appeal shall be borne by the Plaintiff.
The judgment of the first instance shall be revoked. The defendant will implement the registration procedure for cancellation of the registration of cancellation of the establishment registration of a mortgage near the establishment registration completed by the Changwon District Court No. 19239, Dec. 1, 1992 with respect to each real estate listed in the separate sheet to the non-party 1.
1. Determination as to the legitimacy of the instant lawsuit
A. The plaintiff's assertion
The plaintiff has a loan claim of KRW 87,50,00 against the non-party 1, and the non-party 1 had a relation to the non-party 1, who completed the registration of establishment of the collateral of this case, or sought the cancellation of the registration of establishment of the collateral of this case in subrogation of the above non-party 1, since the extinctive prescription of the collateral of this case has expired
B. Determination
In a creditor subrogation lawsuit, where the right of the creditor to be preserved by subrogation is not recognized as to the debtor, the creditor himself/herself becomes the plaintiff and becomes disqualified as a party to the creditor's right to the third debtor, and such subrogation lawsuit shall be dismissed in an unlawful manner (see, e.g., Supreme Court Decisions 94Da14339, Jun. 24, 1994; 2002Da64148, May 13, 2003).
In full view of the statement No. 6 (including additional numbers), the Plaintiff is deemed to have transferred the above loan claim against Nonparty 1 to Nonparty 2 on or around August 2005. Thus, the lawsuit of this case to preserve the claim against Nonparty 1 on the premise that the Plaintiff had a claim against Nonparty 1 is unlawful without any need to further examine it.
2. Conclusion
Therefore, the plaintiff's lawsuit of this case is dismissed, and the judgment of the court of first instance is just in conclusion, and the plaintiff's appeal is dismissed.
Judges Choi Jae-man (Presiding Judge)