건물명도(인도)
1. The judgment of the court of first instance is modified as follows.
Among the lawsuits in this case, a claim for monetary payment based on the subrogation right of a creditor is made.
1. Basic facts
A. On November 30, 2016, the Plaintiff entered into a contract with C to purchase the store (trade name: D) and its adjacent stores (trade name: E) in KRW 270,000,000.
(hereinafter “instant trade”). (b)
The Defendant leased the instant store (hereinafter “instant lease”) by setting the lease term from C on January 8, 2016 to January 7, 2018, which was one year prior to the date of the conclusion of the instant sales contract, for two years from January 8, 2016 to January 7, 2018, and thereafter occupied and used the instant store.
C. The Defendant paid rent, etc. to C before the instant sales. However, after the instant sales, the Plaintiff and C did not pay rent, etc. at all.
On the other hand, the store of this case is the land and facility that belongs to Kimpo-si according to fishing villages and fishery harbors (hereinafter “public property”), and Kimpo-si permitted the first F to use and profit from the store of this case.
[Reasons for Recognition] Uncontentious Facts, Gap evidence 1 through 4, Eul evidence 1 and 3 through 5, witness F, testimony of C and the purport of the whole pleadings
2. The plaintiff's assertion and judgment
A. In order to preserve rights based on the sales contract of this case against C, the Plaintiff sought monetary payment equivalent to the rent of the store of this case and delivery of the store of this case against C by subrogation.
1) ex officio a claim for payment of money, we examine whether the part of the claim based on the subrogation right of the obligee among the instant lawsuit is legitimate or not.
B) In a case where the obligee’s right to the obligor, which is to be preserved by subrogation, is a monetary claim in the event that the obligee’s right to the obligor is a monetary claim in subrogation of the obligor, the obligee may exercise the obligee’s right to the third obligor on behalf of the obligor only when the obligor is insolvent (see, e.g., Supreme Court Decision 2008Da76556, Feb. 26, 2009). However, the instant monetary payment is the need for preservation