1. The plaintiff's appeal is all dismissed.

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

Purport of claim and appeal

1...

1. The reasoning of the judgment of the court of the first instance concerning this case is as stated in the reasoning of the judgment of the court of the first instance except for further determination under Paragraph 2 below (see, e.g., Supreme Court Decision 2009Da4278, Apr. 2, 201).

2. Additional determination

A. Whether the obligee’s subrogation lawsuit in this case is legitimate (the Defendant’s principal safety defense) is unlawful, since the part of the lawsuit in this case’s subrogation claim by the Plaintiff on behalf of the non-party company is not proved by the non-party company’s insolvency, which is the obligor, and thus, it is unlawful.

Where a creditor subrogates a debtor, in cases where the creditor's right to the debtor to be preserved by subrogation is a monetary claim, the creditor may exercise the creditor's right to the third debtor by subrogation of the debtor only when the debtor is insolvent.

In this context, insolvency, which is the requirement for subrogation, means that there is no debtor's ability to repay, and, in particular, where it is impossible to expect voluntary repayment, repayment through compulsory execution shall be considered. Therefore, the important consideration is to determine whether the debtor is a small property, active property, or property that can conform to the above purpose.

action. The action must be brought

(see Supreme Court Decision 2013Da96783, May 14, 2015). In addition, whether an obligee is necessary to preserve a claim ought to be determined as at the time of the closing of argument.

(See Supreme Court Decision 75Da1086 delivered on July 13, 1976). According to the purport of the testimony and pleading of the witness of the first instance trial, the non-party company was currently closed at present, and the remaining property of the non-party company was set at the Industrial Bank of Korea’s maximum debt amount of KRW 360 million, and the first bank’s collateral security right of KRW 792 million has already been set to other creditors.