1. The obligee’s subrogation right can be exercised by the obligee to preserve his/her own claim only when the obligor does not exercise his/her right against the third obligor. Thus, when the obligor has already exercised his/her right at the time when the obligee exercised his/her subrogation right, the obligee cannot exercise the obligor’s right by subrogation (see, e.g., Supreme Court Decision 2008Da65839, Mar. 12, 2009). However, in cases of a lawsuit brought by a non-corporate company without a resolution of the general meeting of members, it is inappropriate to determine the non-corporate company’s decision on filing the lawsuit (see, e.g., Supreme Court Decision 2006Da64573, Jul. 26, 2007). Accordingly, if the obligee filed a lawsuit against the third obligor under the name of the non-corporate debtor, but the judgment was final and conclusive on the ground that the lawsuit was instituted without a resolution of the general meeting of members, it cannot be deemed that the obligor has exercised his/her right against the third obligor.

2. The lower court determined that the Plaintiff’s subrogation lawsuit by obligee of this case, the obligor of ○○○, was unlawful, on the ground that the Plaintiff, as the obligor, filed a lawsuit claiming confirmation of the right to claim payment of deposit money against the Defendant on September 22, 2017 on the ground that the Plaintiff’s claim for confirmation of the right to claim payment of deposit money, which was alleged as the obligor’s subrogation claim, was the cause of the Plaintiff’s claim, and was sentenced to dismissal on September 22, 2017.

3. However, it is difficult to accept the above determination by the court below for the following reasons.

A. Review of the reasoning of the lower judgment and the record reveals the following facts.

1) The forest land of 477 square meters in Gyeongsan-si ( Address 1 omitted) (hereinafter “instant land”) was divided into November 7, 200 into the forest land of 1,408 square meters, and the land category was changed to a road on October 20, 2006. The land cadastre of the said forest land before the said division was written in the old land cadastre of the said forest land. The said forest land cadastre was written by stating that “non-party (here-party name omitted)” was subject to the assessment on September 10, 191.

2) The instant land was incorporated into the section of the expressway construction between Daegu and Busan, and the Defendant expropriated the said land upon adjudication by the Central Land Expropriation Committee.

3) On October 12, 2005, the Defendant deposited KRW 20,129,400 of the instant land on the ground that the deposited person was not aware of the lawful owner of the instant land, which was unregistered on October 12, 2005, on the ground that the deposited person was not known (hereinafter “the instant deposit”). On January 17, 2006, the registration of ownership preservation was made in the name of the Republic of Korea on the instant land.

4) The ○○○○○, a resident community, filed a lawsuit against the Defendant on the ground that the instant claim for payment of the deposit money was against ○○○○○○, and the Daegu District Court 2016Kadan13611, but the said court rendered a judgment dismissing the lawsuit on September 22, 2017, on the ground that “the lawsuit filed by the non-corporate group on the jointly owned property, without a resolution of a general meeting of members, is unlawful by holding special acceptance right as to the filing of the lawsuit, and there is no evidence to prove that ○○○○○ had filed the lawsuit following a resolution of the general meeting of members, and the said judgment became final and conclusive on October 11, 2017.”

5) Meanwhile, the Plaintiff filed the instant lawsuit with the purport of claiming “the Plaintiff’s right to claim the payment of the instant deposit.” On December 13, 2017, the Plaintiff filed an application for modification of the purport of, and the cause of, the claim against the Defendant, stating that “The right to claim the payment of the instant deposit is in ○○○○○○, by taking the right to claim the transfer of ownership based on the completion of prescription for the acquisition of possession on ○○○○○ as the right to claim the transfer of ownership as the right to claim the payment of the instant deposit into consideration as the right to be preserved, in subrogation of ○○○○, by taking the right to claim the payment of the instant

B. Examining the above facts in light of the legal principles as seen earlier, although a lawsuit filed against the Defendant, who is the garnishee, under the name of ○○○○○○○, the debtor of the instant creditor subrogation lawsuit, was brought, and the judgment became final and conclusive on the ground that the lawsuit was brought about without a resolution of a general meeting of members, the lower court should have determined on the grounds that the debtor cannot be deemed to have exercised his/her right to a third party obligor

Nevertheless, solely based on its stated reasoning, the lower court determined that the Plaintiff’s subrogation lawsuit in this case was unlawful. In so determining, the lower court erred by misapprehending the legal doctrine on “requirements for an obligor’s non-exercise of rights in a creditor subrogation lawsuit,” thereby adversely affecting the conclusion of the judgment.

4. Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Sang-ok (Presiding Justice)