Whether the defense as to the claim based on the premise that the plaintiff was the creditor is not reasonable because the plaintiff transferred the claim to the plaintiff on the ground of the fact of assignment of the claim (affirmative)

In a case where the Defendant asserts that there is no standing to be a party on the ground of the assignment of claims as a principal security defense, such assertion may be deemed to include a defense on the merits to the effect that a claim based on the premise that the Plaintiff is a creditor is not reasonable because the Plaintiff transferred the claims.

Articles 188, 193(2) of the Civil Procedure Act

Plaintiff 1 and one other

Han-chul Co., Ltd., Counsel for the defendant-appellant

Seoul High Court Decision 91Na47521 delivered on March 26, 1992

The part of the judgment of the court below against the defendant is reversed.

The case is remanded to the Seoul High Court on this part.

1. Judgment on the first ground for appeal by the defendant's attorney

The lower court determined that the aforementioned defense was without merit, on the ground that the Plaintiffs, the bereaved family members of the deceased Non-Party, transferred their damage claim against the Defendant due to the instant accident, to Non-Party Samho Development Co., Ltd. (hereinafter referred to as Non-Party Co., Ltd.). As such, since the parties to the instant lawsuit should be the non-party Co., Ltd., the assignee of the claim, the Plaintiffs did not have the standing to sue in the instant lawsuit, and thus, the instant lawsuit filed by the Plaintiffs is unlawful. As to the Defendant’s lawsuit for performance, such as the instant lawsuit for damages, the Plaintiffs’ standing to sue itself in the instant lawsuit, and

However, even if the defendant asserted the above assignment of claim as a defense of safety, it can be deemed that the plaintiffs transferred the right to claim compensation of this case to the non-party company, which is premised on the plaintiffs' existence of grounds that the plaintiffs transferred the right to claim compensation of this case to the non-party company. Furthermore, in light of the evidence No. 13 (Agreement) admitted by the court of first instance as evidence by the court below, it can be known that the plaintiff 1 representing the non-party's bereaved family members of the above deceased non-party received 62,50,000 won from the non-party company and transferred the right to claim compensation for damages caused by the accident of this case to the non-party company. Thus, the court below should have deliberated on the issue of whether the plaintiffs transferred the right to claim compensation of this case to the non-party company as claimed by the defendant.

Nevertheless, the court below determined that the judgment on the standing to sue was absorptioned into the propriety of the claim, and accepted part of the plaintiffs' claims without deciding whether or not the plaintiffs transferred the right to claim compensation of this case. Thus, the court below did not err by neglecting the exercise of the right to request explanation, and it is clear that such illegality has affected the judgment. Thus, there is a reason to point out this issue.

2. Determination on the ground of appeal No. 2

If the facts were duly established by the court below, it cannot be deemed that there was an error of law by misunderstanding the legal principles as to comparative negligence, such as the theory of lawsuit, and there is no reason to discuss.

3. Therefore, the part of the judgment of the court below against the defendant shall be reversed, and the case shall be remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices.

Justices Yoon Jae-ho (Presiding Justice)