[소유권이전등기말소][공1993.1.1.(935),87]
Where a judgment is rendered against a debtor by exercising his/her right against a third party debtor, whether the creditor's subrogation right is appropriate (negative)
A creditor's subrogation right is entitled to exercise a creditor's right to preserve his/her claim only in cases where the debtor does not exercise his/her right to the third debtor, so when the debtor has already exercised his/her right at the time when the creditor exercises his/her right to subrogation, even though he/she has already been ruled against the claimant's right to exercise the right
Article 404 of the Civil Act, Article 47 of the Civil Procedure Act
Supreme Court Decision 69Da1311 delivered on April 28, 1970 (No. 180Da735 delivered on May 27, 1980) (Gong1980, 1282) 80Da2751 delivered on July 7, 1981 (Gong1981, 14160)
Plaintiff (Attorney Kim Won-won, Counsel for plaintiff-appellant)
Defendant 1 and 8 others, Counsel for the defendant-appellee-appellant
Daegu District Court Decision 91Na9846 delivered on June 19, 1992
The appeal is dismissed. The costs of appeal are assessed against the plaintiff.
We examine the grounds of appeal by the Plaintiff’s attorney.
The court below accepted part of the land in this case from the deceased non-party 1, the owner of the land in this case. Since the defendants completed the registration of ownership transfer under his name without any grounds for registration, the plaintiff's heir of the deceased non-party 1, in subrogation of the defendants in order to preserve the right to claim the registration of ownership transfer based on the above donation against the non-party 2, non-party 3, non-party 4, non-party 5, etc., and requested the defendants to cancel each ownership transfer registration under the name of the defendants as to the part of his own land in this case. The subrogation right holder can exercise his right to preserve his claim only when the debtor does not exercise his right against the third party debtor. Thus, even if the creditor has already exercised his right in this case at the time of exercising his subrogation right, the creditor is not entitled to exercise the debtor's right on behalf of the debtor. Thus, the court below's judgment of the court below which held that the plaintiff's plaintiff's right to claim the cancellation of the above registration under the name of the defendant's co-defendant in this case against the third party.
Therefore, the plaintiff's appeal is dismissed and all costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.