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1. The instant lawsuit shall be dismissed.
2. The costs of lawsuit shall be borne by the Plaintiff.
Reasons
1. The Defendant filed an application for a payment order (hereinafter “instant payment order”) with the purport that, on February 27, 2014, the Defendant would pay KRW 708,680,370 for the unpaid construction cost, and delay damages, since the Defendant received a subcontract for reinforced concrete construction (hereinafter “instant construction”) from the D Corporation located in Cheongju-si District Court No. 2014,2068 from B (hereinafter “B”), among D Corporation located in Cheongju-si Office C, and the payment order was issued to the same effect as on March 27, 2014, and became final and conclusive on May 28, 2014.
【Ground for recognition】 Entry of evidence No. 6 and the purport of the whole pleadings
2. The Plaintiff, who received a contract from B for the instant construction work, is not the Defendant, but the Plaintiff is not the Plaintiff, and thus, the Plaintiff has a claim for the construction cost against B, and the Defendant, in subrogation of B, asserts that there was no claim for the construction cost against B concerning the instant construction work, and sought a rejection of compulsory execution based on the instant payment order.
Before determining the Plaintiff’s assertion, we examine ex officio the legitimacy of the instant lawsuit.
A person who is entitled to file a lawsuit of demurrer is an executory creditor on behalf of a debtor on behalf of a debtor on the title of execution, the succession of an obligation, and other grounds, and such person's creditor is entitled to file a lawsuit of demurrer based on the obligee's subrogation right (see Supreme Court Decision 91Da41620, Apr. 10, 192). However, in a creditor subrogation lawsuit, such as this case's lawsuit, where the right of a creditor to be preserved by subrogation is not recognized or there is no need for preservation, the subrogation lawsuit is not unlawful and dismissed, and it is difficult to recognize the need for preservation unless there is any assertion as to the need for preservation because B is insolvent.