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The judgment below
The part against the Defendant regarding the conjunctive claim is reversed, and this part of the case is remanded to the Seoul High Court.
Reasons
1. As to the grounds of appeal
A. The right to claim a division of property due to divorce is a right to claim a division of property against the other party, and the legal effect arises only when the divorce is established, and the specific scope and content of the right is unclear until the divorce is established by agreement or adjudication. Therefore, the specific right cannot be deemed to have occurred.
Therefore, in cases where a party’s claim for division of property was filed jointly with a divorce lawsuit before the divorce is established, it is not permissible by nature to transfer the right to claim division of property, which has not yet occurred and its specific contents have not yet been formed, and the court may be entitled to transfer the claim after the judgment ordering monetary payment as a property division becomes final
B. Review of the reasoning of the lower judgment and the record, including the duly admitted evidence, reveals the following facts.
(1) On August 31, 2012, D borrowed KRW 100 million at the interest rate of 30% per annum from Plaintiff A. On December 13, 2012, D transferred to the Defendant of D, who ordered payment under Seoul High Court Decision 201Reu1682 (principal lawsuit) and 201Reu1Reu169 (Counterclaim) (including the first instance judgment) (including the first instance judgment) (hereinafter referred to as “the instant judgment”), out of the claim against the Defendant of D (hereinafter referred to as “the claim of this case”), and notified the Defendant of the said transfer on December 13, 2012, and the said transfer notification reached the Defendant on December 18, 2012.
(2) In addition, on January 7, 2013, D borrowed KRW 100 million from Plaintiff B at an annual interest rate of 30%, and on the same day, D transferred KRW 100 million out of the instant judgment amount to Plaintiff B by means of a security or repayment for the repayment of the said borrowed amount, and notified the Defendant of the said transfer on January 9, 2013.