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1. The plaintiff's appeal is dismissed.
2. The plaintiff's conjunctive claim shall be dismissed by this court.
Reasons
1. The reasoning for the acceptance by the court of first instance is as follows, except for the addition of "2. additional determination" as to the conjunctive claim added by the plaintiff in this court, and therefore, it is identical to the corresponding part of the judgment in the first instance. Thus, it is accepted in accordance with the main sentence of Article 420 of the Civil Procedure Act
2. Additional determination
3. Determination on the conjunctive claim
A. The plaintiff's assertion that D has a loan claim of KRW 170 million against D, and D in subrogation of D, an insolvent, for the purpose of preserving the above claim, D seeks payment of KRW 170 million against the Defendants of the investment refund claim of KRW 170 million.
B. The creditor's right to the debtor, which is to be preserved by subrogation, in the case where the creditor's right to the debtor is a monetary claim in subrogation of the debtor, that is, the necessity of the preservation, the creditor can exercise the debtor's right to the third debtor on behalf of the debtor only when the debtor is insolvent, and the insolvency as a requirement for subrogation of the creditor does not have the debtor's ability to pay.
(see, e.g., Supreme Court Decisions 2004Da2564, Feb. 10, 2006; 2008Da76556, Feb. 26, 2009). In addition, in a case where the need for such preservation is not recognized, a lawsuit is illegal and thus, the court should dismiss it.
(see, e.g., Supreme Court Decision 2010Da39918, Aug. 30, 2012). In light of the foregoing legal doctrine, it is not sufficient to recognize D as insolvent solely on the basis of the result of inquiry into the head of the instant court’s annual system, and there is no other evidence to acknowledge it. Thus, D cannot be deemed insolvent.
Therefore, the preliminary claim based on subrogation is unlawful because it is not recognized as a need to preserve it.
3. Thus, the plaintiff's primary claim shall be dismissed as it is without merit, and the judgment of the court of first instance shall be concluded.