[소유권이전등기말소][집22(1)민,25;공1974.3.15.(484) 7741]
Whether the prohibition of double lawsuit conflicts with the prohibition of double lawsuit where the debtor files the same lawsuit against the same defendant while the creditor's subrogation lawsuit is pending.
If a creditor files a lawsuit against the same defendant on behalf of the debtor in accordance with Article 404(1) of the Civil Code, and the debtor files a lawsuit with the same defendant on the same ground of claim and cause of claim, the above two lawsuits are identical in substance even if different parties do, so the subsequent lawsuit conflicts with the prohibition of duplicate lawsuit under Article 234 of the Civil Procedure Act.
[Judgment of the court below]
Defendant 1 and one other, Counsel for the court below's decision
Seoul High Court Decision 71Na2154 delivered on January 19, 1973
The appeal is dismissed.
The costs of appeal are assessed against the plaintiff.
The ground of appeal No. 1 by the plaintiff's attorney is examined.
According to the reasoning of the judgment of the court below, with respect to the land No. 1,763 (real estate recorded in the list No. 1 of the judgment of the court below) among the subject matter of the lawsuit of this case, the court below has confirmed that, based on evidence, the non-party Shin Young-gun (the real estate recorded in the list No. 1 of the judgment of this case) has been pending in the court of final appeal in the court of final appeal, by subrogation of the plaintiff against the defendants on behalf of the plaintiff on behalf of the plaintiff. Thus, the above lawsuit and the plaintiff's principal lawsuit on behalf of the plaintiff by the creditor's subrogation under Article 404 (1) of the Civil Code are the same lawsuit in substance, even though the parties are different, since this lawsuit does not conflict with the so-called prohibition of double lawsuit under Article 234 of the Civil Procedure Act (see Supreme Court Decision 94Da251, 252 delivered on May 24, 1962).
Therefore, it is just that the court below dismissed the plaintiff's lawsuit on the above site on the same purport, and it cannot be said that there was an error of interpreting the law on the overlapping lawsuit such as the theory of lawsuit.
The second ground of appeal is examined.
The court below rejected the plaintiff's remaining claims on the ground that the agreement between the plaintiff and the defendants on February 1, 1970 was concluded by deception of the defendants and the non-party as alleged by the plaintiff, or that there was no violation of the defendants in this contract. Accordingly, the court below rejected the plaintiff's remaining claims on the premise that the plaintiff's assertion can be acknowledged by setting out the evidence rejected by the court below, and there was a violation of the rules of experience or rules of evidence, or an error of law such as misunderstanding of facts, etc.
However, there is no ground for recording that the judgment of the court below was in violation of the theory of lawsuit.
In the end, the issue is to criticize the lower court's exclusive right to the cooking of evidence, or the value judgment or fact-finding without reason, and is therefore without reason.
Therefore, the plaintiff's appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.
Justices Yang Byung-ho (Presiding Justice)