소유권이전등기말소등
1. The instant lawsuit shall be dismissed.
2. The costs of lawsuit shall be borne by the Plaintiff.
1. The Plaintiff’s assertion has claim 33,164,919 won against B. The Plaintiff’s purchase of the instant real estate from A and registered under the name C was in violation of the Act on the Registration of Real Estate under Actual Titleholder’s Name (hereinafter “False Act”).
Therefore, since the ownership transfer registration of the instant real estate in the name of C is a registration under an invalid title trust agreement, it shall be cancelled. However, the Plaintiff seeks to implement the procedure for the ownership transfer registration of the instant real estate against the Defendant B in subrogation of B, who is the debtor.
2. 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). The existence of the need for such preservation must be asserted and proved by the obligee (see, e.g., Supreme Court Decision 75Da1086, Jul. 13, 1976). If such preservation is not deemed necessary, the suit is unlawful and thus the court must dismiss it.
(See Supreme Court Decision 2010Da39918 Decided August 30, 2012). Since there is no evidence to acknowledge that the Plaintiff’s subrogation right is insolvent, the Plaintiff’s exercise of subrogation right is unlawful on the ground that there is no need for preservation.
Therefore, the defendant's main defense is justified.
3. In conclusion, the lawsuit of this case is unlawful and thus, it is so decided as per Disposition.