Seoul East Eastern District Court-2015-Dong-13196 (Law No. 06, 2017)

Requirements of lawfulness of the exercise of subrogation

If a creditor's right to be preserved by subrogation is not recognized as a creditor's right to the debtor, or if a creditor's subrogation claim is a monetary claim, the necessity of preserving the creditor's subrogation lawsuit is illegal because the creditor's standing is not the debtor's insolvency.

Civil Code § 404. Creditor's right of subrogation

2017Na23785 Demurrer against distribution

○○○ Incorporated Company

Korea

June 15, 2018

July 6, 2018

1. The plaintiff's appeal is dismissed.

2. The plaintiff's conjunctive claim is dismissed by this court.

2. The costs of the lawsuit after the appeal shall be borne by the Plaintiff.

1. Purport of claim

A. The primary purport of the claim

Of the distribution schedule prepared by the above court on March 31, 2015, the amount of 140,307,482 won against the defendant shall be deleted, and the amount of 0 won against the plaintiff shall be changed to KRW 140,307,482, among the distribution schedule cases prepared by the above court on March 31, 2015.

B. Preliminary purport of claim

Of the distribution schedule prepared by the above court on March 31, 2015, the amount of 140,307,482 won against the defendant in relation to the distribution procedure case of Seoul East Eastern District Court 2014Ma1837, the amount of dividends against the defendant shall be deleted, and the amount of dividends against the debtor Cho Dong shall be changed to KRW 140,307,482 (the plaintiff added the conjunctive claim in this court).

2. Purport of appeal

The judgment of the first instance shall be revoked. The same judgment as the primary purport of the claim shall be sought.

1. Quotation of judgment of the first instance;

The reasons for this court's entry are as follows. The first order for payment of the 8th trial's 12th trial's 8th trial's 12th trial's 9th trial's 7th trial's 16th trial's 16th trial's 8th trial's 8th trial's 8th trial's 9th trial's 7th trial's 16th trial's 16th trial'

2. Additional determination

A. Summary of the assertion

1) The plaintiff's assertion

Since the Defendant did not have any claim against ChoA and is not in the position to receive dividends in the instant dividend procedure, the dividends against the Defendant ought to be distributed to ChoA, an obligor. The Plaintiff, as a creditor of ChoA based on the payment order, raised an objection against the Defendant in subrogation of ChoA as a creditor of the first payment order, against the entire amount of dividends to the Defendant. Accordingly, the Defendant sought correction of the distribution schedule, such as the conjunctive purport.

2) The defendant's assertion

In order to exercise creditor's subrogation right, the creditor's creditor's creditor's creditor's creditor's creditor's creditor's creditor's creditor's creditor's creditor's creditor's creditor's claim should exist.

B. Whether the plaintiff's subrogation right is legitimate

1) In a creditor subrogation lawsuit, where a creditor who is to be compensated by subrogation does not have the right to a debtor, the creditor himself/herself becomes the plaintiff and has no standing to exercise the debtor's right to a third debtor (see, e.g., Supreme Court Decision 2005Da27188, Sept. 29, 2005). In light of the interests of the parties concerned, the Plaintiff's assets at the time of the time of the judgment regarding the second payment order, the existence of evidentiary materials proving the cause of occurrence of the claim, and authenticity, etc., it is reasonable to deem that the Plaintiff's claim against the first payment order under the first payment order asserted by the Plaintiff as a preserved claim does not exist from the beginning, or that the Plaintiff's claim is invalid by collusion with the parties, as there is no other evidence to acknowledge that the Plaintiff has a claim against ChoA. Accordingly, the Plaintiff's creditor subrogation lawsuit is unlawful since the Plaintiff has no standing to sue.

2) Even if the Plaintiff’s preserved claim is acknowledged, where the obligee’s right against the obligor, which is to be preserved by subrogation, is a monetary claim in the event that the obligee’s right against the obligor is a monetary claim in subrogation of the obligor, the obligee may exercise the obligee’s right on behalf of the obligor on behalf of the obligor only when the obligor is insolvent, and where such preservation is not necessary, the obligee’s subrogation lawsuit is unlawful (see, e.g., Supreme Court Decisions 93Da28867, Oct. 8, 1993; 2010Da39918, Aug. 30, 2012). In the instant case where it is obvious that the obligor’s preserved claim is a monetary claim, and there is no evidence to acknowledge that the obligee’s subrogation lawsuit is insolvent as of the date of the closing of argument in the instant case, and thus, the obligee’s subrogation lawsuit is unlawful.

3) Therefore, the part of the conjunctive claim that the Plaintiff seeks as the exercise of creditor’s subrogation right is deemed to be unlawful and ambiguous.

3. Conclusion

Therefore, the plaintiff's primary claim shall be dismissed as it is without merit. Since the judgment of the court of first instance that shares the same conclusion is justifiable, the plaintiff's appeal is dismissed as it is without merit. Meanwhile, the plaintiff's conjunctive claim added by this court is illegal and thus it shall be dismissed as it is so ordered. It