Main Issues

A creditor shall claim the return of the property which the creditor has pretended to sell to a third party, and exercise the creditor subrogation right.

Summary of Judgment

In case where a creditor is entitled to exercise a creditor's subrogation right for the preservation of his own claim, an application for an order of provisional seizure or provisional disposition may also be made in order to preserve a compulsory execution concerning his claim.

[Reference Provisions]

Article 94 of the Civil Act, Article 423 of the Civil Act

Applicant-Appellant

The Gyeongsan-gun Association and the Office of Property Management;

Respondent-Appellee

Papman et al. and one other

Judgment of the lower court

Daegu District Court Decision 57 civilian 153 delivered on July 9, 1957

Reasons

If the obligor sells and delivers the property owned by him/her to a third party, the obligor may demand the third party to return it on the ground that the sale becomes null and void. Therefore, the obligee can exercise the obligee's right to claim the return of the property against the third party in order to preserve his/her own claim on behalf of the obligor, and an application for the order of provisional pressure or provisional disposition may also be filed in order to preserve the obligor's right to claim the return of the property against the third party. In this case, according to the reasoning of the original judgment, there is no provision allowing the obligee's right of subrogation as stipulated in Article 423 of the Civil Procedure Act, and therefore, the obligee's right to claim the return of the property cannot be permitted on the ground that the obligee's right of subrogation is not permissible