[1] Whether the lawsuit claiming the performance of an obligation filed by the obligee against the person assuming the obligation and the lawsuit claiming the existence of the obligation against the obligee by the person assuming the obligation is identical (negative)

[2] The case holding that there is no benefit in the lawsuit to seek confirmation of the absence of the obligation by the person assuming the obligation at a separate lawsuit against the person assuming the obligation, while the lawsuit claiming the performance of the obligation against the person

[1] The lawsuit claiming the performance of an obligation filed by the obligee against the assignee and the lawsuit claiming the confirmation of the existence of the obligation against the obligee by the assignee against the obligee is different from the original obligee’s claim and the cause of the claim are different, and thus, it does not constitute a double lawsuit.

[2] The case holding that there is no benefit in the lawsuit to seek confirmation of the absence of the obligation by the person assuming the obligation at the separate lawsuit against the person assuming the obligation, while the lawsuit claiming performance against the person assuming the obligation is pending

[1] Article 234 of the Civil Procedure Act / [2] Article 228 of the Civil Procedure Act

[1] Supreme Court Decision 57Da784 decided Mar. 6, 1958 (Nos. 6, 800)

Plaintiff

Defendant

Seoul District Court Decision 2000Na1029 delivered on March 22, 2001

The appeal is dismissed. The costs of appeal are assessed against the plaintiff.

1. The facts acknowledged by the court below are as follows.

A. On July 10, 1995, the establishment registration of a neighboring mortgage (hereinafter referred to as the "establishment registration of a neighboring mortgage") consisting of KRW 100 million with respect to the housing (hereinafter referred to as the "real estate of this case") owned by the Plaintiff and KRW 1,240 square meters with respect to the housing (hereinafter referred to as the "real estate of this case") on the ground of a contract to establish a mortgage on July 13, 1995, and the additional registration was completed on May 11, 1998 with respect to the establishment registration of a neighboring mortgage (hereinafter referred to as the "mortgage") consisting of the debtor, the debtor, and the non-party 1 as the mortgagee.

B. In the first instance court of this case, the Plaintiff asserted that the secured debt of the foregoing right to collateral security was an obligation against Nonparty 2, which was repaid to Nonparty 1, and extinguished, and rejected the Plaintiff, which claimed for cancellation of the registration of creation of a mortgage of this case.

C. The Defendant filed an application for voluntary auction on the instant real estate prior to the Plaintiff’s filing of the instant lawsuit, and the registration of ownership transfer was cancelled on December 4, 200 after the court of first instance rendered a decision that the successful bidder of the instant real estate paid the successful bid price in full.

D. Accordingly, on March 5, 2001 at the lower court, the Plaintiff changed the purport of the claim on March 5, 2001 to the effect that “it does not exist the obligation of KRW 100 million to the Defendant of Nonparty 2 pursuant to the agreement around July 10, 1995.”

E. Meanwhile, on January 18, 2001, the Plaintiff denied the Defendant’s claim against the Plaintiff demanding distribution without executory exemplification on the date of distribution of the voluntary auction procedure for the instant real estate. On January 22, 2001, the Defendant filed a lawsuit seeking confirmation of claim for the payment of KRW 100 million and its delay damages against the Plaintiff at the Busan District Court Branch by asserting that “the Plaintiff concurrently assumed the Plaintiff’s obligation of KRW 100 million against Nonparty 1, while the Plaintiff jointly assumed the obligation against Nonparty 2, as the secured obligation, and filed a lawsuit seeking the payment of KRW 100 million and its delay damages with the Plaintiff on January 29, 2001.”

2. After recognizing the above facts, the court below determined that the plaintiff's lawsuit for confirmation of the existence of the debt of this case and the lawsuit for confirmation of the claim of this case filed by the defendant against the plaintiff was unlawful since the plaintiff's lawsuit for confirmation of the existence of the debt of this case were only replaced only by the status of the plaintiff and the defendant, and both the parties and claims were the same. Since the plaintiff's lawsuit for confirmation of the existence of the debt of this case was brought about after the lawsuit for confirmation of the claim

3. However, the lawsuit of this case is a lawsuit for confirmation that there is no debt owed by the defendant against the defendant of this case. The lawsuit for confirmation of the above claim filed by the defendant against the plaintiff is a lawsuit for the performance of the monetary obligation for the reason that the plaintiff concurrently acquired the debt owed by the defendant of this case. Since the purport of this lawsuit and the cause of the claim are different, the court below erred in holding that the lawsuit of this case constitutes a duplicate lawsuit. However, since the plaintiff jointly acquired the debt of this case in relation to the registration of the establishment of the neighboring mortgage of this case, the lawsuit for confirmation of the claim against the plaintiff of this case is pending, and the plaintiff is not entitled to claim KRW 100 million against the plaintiff or the non-party 2 by seeking a ruling of the dismissal of the claim. Accordingly, there is no benefit to seek confirmation against the defendant that there is no debt of KRW 100 million against the plaintiff of this case. Accordingly, the plaintiff's lawsuit for confirmation of the existence of the debt of this case is unlawful, and the conclusion of the court below's dismissal of the lawsuit of this case is justified.

4. Therefore, the appeal shall be dismissed, and the costs of the lawsuit shall be borne and so decided as per Disposition.

Justices Zwon (Presiding Justice)