Whether the right to claim a division of property is subject to the creditor's subrogation right

The right to claim a division of property between the divorce parties can not be the object of creditor's subrogation right because it is only an abstract right before the scope and contents are specified by consultation between them or by the court's decision.

Articles 404(1) and 839-2 of the Civil Act

Claimant

Other Party

1. The claimant's claim is dismissed.

2. The cost of a trial shall be borne by the claimant.

The other party shall pay 52,200,000 won to the foreign party.

In full view of Gap evidence No. 1, Gap evidence No. 2, and evidence No. 3, the plaintiff et al. (hereinafter the plaintiff et al.) and the other party living as a legal couple who completed a marriage report on August 9, 1974 and divorced by judicial compromise on April 14, 1992. The other party purchased the real estate listed in the separate sheet on September 14, 1984 from other parties and completed the registration of transfer of ownership under their own name on the 7th of the same month. However, although the plaintiff borrowed 39,50,000 won from the claimant several times from November 1, 198 to November 1, 1991, the claimant did not repay it, and the court below decided that the plaintiff paid the interest and delay damages from July 28, 1992 to the court of Seoul Civil District Court.

As the cause of the claim in this case, the claimant and the other party acquired real estate listed in the separate sheet in around 1984 through mutual cooperation after marriage. As such, the above real estate is subject to the division of property at divorce between the other party and the other party, and the other party has the obligation to divide the property to the other party according to the ratio of contribution of the other party to the claim in acquiring the above real estate. The other party does not exercise the other party's right to claim the division of property against the other party to avoid payment even though the other party cannot repay the above loan principal and interest due to his insolvent. Thus, the claimant who is the creditor against the other party to the claim does not exercise the other party's right to claim the division of property against the other party for the purpose of avoiding the above loan amounting to 180,000,000 won which is the current value of the above real estate on behalf of the other party to the claim, which corresponds to the ratio of the other party to the claim's contribution to the acquisition of the above real estate.

On the other hand, the claimant's right to claim division of property between the parties to a divorce is merely an abstract right before its scope and contents are specified through consultation between them or a court's judgment. Thus, the claimant's right to claim division of property between the parties to a divorce and the other party cannot be the object of vicarious exercise. Thus, the claimant's right to claim division of property in subrogation of the other party in this case where no evidence exists to deem that the content and scope of the right to claim division of property have been determined through consultation between them or a court's judgment, etc.

Therefore, the claimant's request shall be dismissed and judged as per Disposition.

[Attachment]

Judges Yoon Jin-Hun (Presiding Judge)