[1] Whether the right to claim a partition of co-owned property can be the object of creditor's subrogation right (affirmative)

[2] Criteria to determine whether there is "the necessity of preservation", which is a requirement to exercise creditor's subrogation right

[3] Whether a pecuniary claimant may exercise the right to partition of co-owned property as to real estate owned by the debtor in order to preserve his/her own claim (negative in principle), and whether the co-ownership of the debtor jointly secured the right to partition of co-owned property with other co-owners' co-ownership, and it is inevitable to cancel the auction procedure pursuant to Article 102 of the Civil Execution Act because the secured claim of the right to partition of co-owned property does not have any possibility of remaining if the debtor's co-ownership exceeds the debtor's co-ownership share value, and on the other hand, if all co-owned property is sold by the method of partition of co-owned property, the secured claim of the co-owned property is shared in proportion to the auction price of each co-owned share pursuant to Article 368

[1] The obligee may exercise the obligor’s right to preserve his/her claim (Article 404(1) of the Civil Act). The claim for partition of co-owned property is a formative right incidental to co-ownership relation, and is a kind of property right constituting a co-owner’s general property. The exercise of the claim for partition of co-owned property solely belongs to the co-owner’s free will, and it cannot be deemed a right which can be exercised only by the co-owner himself/herself. Therefore, the claim for partition of co-owned property may also become

[2] The issue of whether to exercise the right is a matter of principle that the right holder determines on the basis of the free will of the debtor. If the creditor is able to exercise the right of the debtor on behalf of the debtor even though the debtor does not exercise his/her right on his/her own, it is necessary to preserve the right of the creditor by exercising the right of the debtor. Here, the necessity of preservation is to be determined on the basis of whether exercising the right of the debtor on behalf of the debtor is necessary to ensure the effective and appropriate implementation of his/her claim, in light of the following: (a) the content of the right that the creditor intends to preserve; (b) the creditor’s right to preserve is a monetary claim; (c) the creditor’s right to preserve is a monetary claim; and (d) the relationship between the right that the creditor intends to exercise on his/her behalf of the debtor

[3] [Majority Opinion] A creditor’s exercise of the right to partition of co-owned property on behalf of the debtor in order to preserve his/her own monetary claim is not directly related to the preservation of the responsible property, and it is difficult to deem it necessary to ensure the actual performance of the claim to be valid and appropriate, and there is unreasonable interference with the debtor’s free act of property management, and thus, the necessity for preservation is not recognized. In addition, in light of the nature of the right to partition of co-owned property, which does not specify the method of division, there are several legal problems if the exercise of the right is permitted. Therefore, unless

This means that the debtor's co-ownership is jointly secured with the co-ownership of other co-owners, and the secured claim of the right to collateral security is not expected to remain if the debtor's co-ownership exceeds the debtor's co-ownership value, and thus the auction procedure is revoked pursuant to Article 102 of the Civil Execution Act. On the other hand, when the whole co-owned real property is sold by the method of partition of co-owned property, the secured claim of the right to collateral security is shared in proportion to the auction price of each co-owned share pursuant to Article 368 (1) of the Civil Act, and it is also possible to repay

[Dissenting Opinion by Justice Kwon Soon-il, Justice Kim Jae-hyung, Justice Park Jung-hwa, and Justice Kim Seon-soo] Although an obligor over obligation owns a co-owned share in real estate, compulsory execution against the obligor’s co-owned share due to joint collateral existing on co-owned real estate cannot be possible. On the other hand, if the entire co-owned real estate is sold by means of co-owned property partition, according to Article 368(1) of the Civil Act, in proportion to the auction price of each co-owned share, the obligee is entitled to share the secured claim of co-owned property, and the obligor’s share to be apportioned to co-owners, the obligee should be allowed to exercise the obligor’s right to co-owned

[1] Articles 268, 269, and 404(1) of the Civil Act / [2] Article 404(1) of the Civil Act / [3] Articles 268, 269, 368, 404(1), 481, and 482 of the Civil Act; Articles 102, 140, and 274(1) of the Civil Execution Act

[2] Supreme Court Decision 93Da28867 Decided October 8, 1993 (Gong1993Ha, 3050), Supreme Court Decision 2010Da5014 Decided May 23, 2013 (Gong2013Ha, 1098), Supreme Court Decision 2014Da89355 Decided July 11, 2017, etc. / [3] Supreme Court Decision 91Da2728 Decided November 12, 1991 (Gong192, 102), Supreme Court Decision 2002Da70181 Decided April 8, 203 (Gong203Sang, 1084), Supreme Court en banc Decision 2010Da3197129 Decided August 30, 2012 (Gong20194, Supreme Court Decision 2010Da3197194 Decided December 19, 2012)

Meson AWA loan Co., Ltd. (formerly: AWA loan company)

Defendant

Incheon District Court Decision 2017Na8494 decided December 5, 2017

The judgment below is reversed, and the case is remanded to the Incheon District Court.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. Case summary and key issue

A. According to the reasoning of the lower judgment and the record, the following facts are revealed.

1) The Plaintiff is a creditor who acquired, from the Korea Asset Management Corporation, a transferee of the claim for takeover (6,399,954 won and damages for delay from June 26, 1998, as to KRW 5,492,428 won and damages for delay from June 26, 1998, as to KRW 6,39,954 won and KRW 5,492,428 won based on the payment order (hereinafter “instant preserved claim”).

2) As to the instant apartment owned by Nonparty 2, on May 23, 2013, the registration of ownership transfer was made on the ground of “the inheritance by agreement and division on December 7, 2011.” However, on November 15, 2016 regarding the registration of the transfer of ownership, the share of 1/7 of the instant apartment (hereinafter “instant co-ownership share”) was registered on the ground of “the revocation of fraudulent act on August 17, 2015,” on the ground that Nonparty 1’s and 6/7 shares were corrected as co-ownership of the Defendant.

3) Before the registration of ownership transfer was made on the apartment of this case, the right to collateral security (the right to collateral security in this case collectively referred to as “the right to collateral security”) was established, respectively, which is the sum of the maximum debt amount between the debtor Nonparty 3 and the debtor, and Nonparty 3, and the debtor, as well as the maximum debt amount, 18 million won, before the National Agricultural Cooperative Federation was registered (the first debtor was the debtor, but the debtor was changed to Nonparty 3 on March 14, 201).

4) Although the Korea Credit Guarantee Fund applied for a compulsory auction against the instant co-ownership share and started the auction procedure, on February 8, 2017, the auction court notified the Korea Credit Guarantee Fund that the amount of KRW 59,000,000 of the minimum sale price of the instant co-ownership shall not extend to KRW 296,297,784 (right to collateral security, delinquent taxes, and public charges) which takes precedence over the claims of the execution creditor, and dismissed the request for auction on February 17, 2017.

5) Nonparty 1 was insolvent at the time of the closing of argument in the lower court.

B. The first instance court rejected the Plaintiff’s lawsuit on the ground that there is no need to preserve the partition of co-owned property on behalf of Nonparty 1 in order to preserve the monetary claim. On the other hand, the lower court, on the following grounds, determined that the Plaintiff may file a claim against the Defendant for partition of co-owned property on the apartment of this case against Nonparty 1 by subrogation of Nonparty 1 in order to preserve the monetary claim against Nonparty 1. Accordingly, the lower court revoked the first instance judgment and ordered the Plaintiff to sell the apartment of this case at auction and order the Defendant to distribute the remaining money calculated by deducting auction expenses from the proceeds

1) Even if the Plaintiff attempted to enforce a compulsory execution against the instant co-ownership, the compulsory execution is bound to have the same outcome as the request for the auction of the Credit Guarantee Fund.

2) The instant apartment building, which is an aggregate building, is the most equitable and reasonable method of partition of co-owned properties by means of auction and distributing the price according to co-ownership shares (hereinafter “sale of co-ownership”).

3) In a case where the Plaintiff’s vicarious exercise of the right to partition of co-owned property, thereby making a partition of the price for the instant apartment, the price of the instant apartment is limited to KRW 413,00,000 (=59,000 x 7) and less KRW 296,297,784 as seen above, and even if considering uncertainty of the auction procedure, it appears that a considerable amount can be distributed to Nonparty 1, a co-owner, and the Defendant. Thus, the vicarious exercise of the right to partition of co-owned property can be an effective and appropriate means to secure the preserved claim of this case.

C. We examine the issues of this case.

1) Each of the instant apartment units jointly secure the instant collective security right. The sum of the instant collective security right and other preferential rights burden is larger than the value of the instant collective ownership, but rather than the value of the instant apartment unit (wholly owned share).

2) Article 368(1) of the Civil Act provides, “Where a mortgage has been created on several immovables as security for the same claim, if the proceeds of the auction are to be distributed at the same time, the apportionment of the claim shall be determined in proportion to the proceeds of the auction of each immovables.” The main sentence of Article 368(2) of the Civil Act provides, “If the proceeds of the auction of part of the immovables mentioned in the preceding paragraph are to be distributed first, the proceeds of the auction may be repaid in full from the proceeds of the auction.” Here, “the proceeds of the auction of each immovables” refers to the remaining amount after subtracting the costs of the auction and senior claims to be borne by the relevant immovables from the proceeds of the auction (see Supreme Court Decision 2001Da66291, Sept. 5, 2003, etc.). In a compulsory auction of immovables, when it is recognized that there is no remaining amount if the execution court reimburses all the costs of the real estate taking precedence over the claims of the execution creditor at the minimum sale price, it shall be notified to the execution creditor (see Article 10(2).

3) Article 368 of the Civil Act also applies to joint collateral security (see Supreme Court Decision 2005Da14502, Oct. 27, 2006). In the event that the Plaintiff sells only the instant co-owned share, the auction procedure is likely to be cancelled pursuant to Article 102 of the Civil Execution Act as it is unlikely that the Plaintiff would have repaid the total amount of the claim secured by the right to collateral security of this case if it pays out the total amount of other real estate and procedural expenses under Article 368(2) of the Civil Act. On the other hand, if the court orders the division of the co-owned share as one of the methods of partition and sells the entire apartment of this case at auction and distributes dividends pursuant to Article 368(1) of the Civil Act, from the auction price corresponding to the instant co-owned share, the share of the secured debt proportional to each co-owned share, not the total amount of the claim secured by the joint collateral security x the auction price ± the auction price for the instant co-owned share).

4) The main issue of the instant case is whether the obligee can exercise the right to partition of co-owned property on behalf of the obligor in order to preserve monetary claims where compulsory execution against the obligor’s share in real estate, which is the obligor’s responsible property,

2. Whether exercise of the right to partition co-owned property by money creditor is permitted.

A. The obligee may exercise the obligor’s right to preserve his/her claim (Article 404(1) of the Civil Act). The right to claim partition of co-owned property is a kind of property right constituting a co-owner’s general property, which is a formation right incidental to co-ownership relation. The exercise of the right to claim partition of co-owned property solely belongs to the co-owner’s free will, and it cannot be deemed a right that can only be exercised by the co-owner himself/herself. Therefore, the right to claim partition of co-owned property may also become

B. The issue of whether to exercise the right is a matter of principle. If an obligee is able to exercise the obligor’s right on behalf of the obligor even though the obligee does not exercise his/her right on his/her own, it is necessary to preserve the obligee’s right by exercising the obligee’s right on behalf of the obligor. Here, the need to preserve the obligee ought to be determined based on whether exercising the obligee’s right on behalf of the obligor is necessary to ensure the effective and appropriate implementation of the obligee’s right, in full view of the following: (a) the obligee’s right to preserve is a pecuniary claim; (b) the obligee’s right to preserve is the obligor’s ability if the obligee’s right is a pecuniary claim; and (c) the relationship between the obligee’s right to preserve and the right to exercise the obligee’s right on behalf of the obligee is at the risk of not being able to exercise the obligee’s right on behalf of the obligor on behalf of the obligor; and (d) the need to preserve the obligee’s right to exercise the obligee’s right on behalf of the obligor on behalf of the obligor.

C. The obligee’s exercise of the right to partition of co-owned property on behalf of the obligor in order to preserve his/her own monetary claim is difficult to view that it is necessary to ensure effective and appropriate performance of the claim, as it is not directly related to the preservation of the responsible property, and is unreasonable interference with the obligor’s free act of property management. In addition, in light of the nature of the obligor’s right to partition of co-owned property on behalf of the obligor, which is not premised on a specific method of partition, there are several legal problems if the exercise of the right is permitted. Therefore, if it is not extremely exceptional

This means that the debtor's share in co-ownership is jointly secured with the co-ownership of other co-owners, and it is inevitable to revoke the auction procedure pursuant to Article 102 of the Civil Execution Act because it is unlikely that the secured claim of the right to collateral security will not remain if the debtor's co-ownership exceeds the debtor's co-ownership value. On the other hand, the auction procedure should be revoked pursuant to Article 102 of the Civil Execution Act. On the other hand, the auction of the whole co-owned real property by the method of partition of co-owned property would share the secured claim of the co-ownership in proportion to the auction price of each co-ownership pursuant to Article 3

1) In principle, a person holding a monetary claim against a co-owner shall obtain satisfaction of the claim through compulsory execution against co-owner's co-ownership. It cannot be generally said that the exercise of the right to partition of co-owned property prevents the reduction of the debtor's responsible property, or increases the responsible property by exercising the right to partition of co-owned property. If selling the whole co-owned property, the sale price of the co-owned property can increase more than the sale price of the co-owned property, it cannot be legally assessed that the debtor's responsible property increases.

2) Even in cases where each co-owned share of real estate as in the instant case is in joint collateral security relationship, partition of co-owned property is not directly related to the preservation of responsible property.

Even if partition of co-owned property is not made, if all co-owned property which is the object of the joint collateral security is sold at auction through the execution of the future joint collateral security and is distributed at the same time, Article 368(1) of the Civil Act applies, and “the effect of sharing the claim secured by the joint collateral security in proportion to the value of each co-owned share”

Even in cases where only the co-ownership of the debtor is sold first through the execution of joint collateral security and the proceeds of the auction are distributed to the joint collateral mortgagee, as in this case, the debtor, who is in the position of the surety, can exercise a mortgage on other co-ownership shares of the joint collateral mortgagee within the scope of the right of indemnity in accordance with Articles 481 and 482 of the Civil Act concerning subrogation by the person who has performed the obligation to secure another's property. The debtor who is in the position of the surety to secure another's property can be protected to ensure

3) Although a creditor cannot immediately enforce a debtor’s share of co-ownership because he/she is unlikely to have a remaining effect, it is not likely to obtain satisfaction of a claim from the debtor’s co-ownership. A creditor may obtain satisfaction of a claim from the debtor’s co-ownership by prior to the time when the joint mortgagee executes the right to collateral security. The right to collateral security may be extinguished by the debtor’s repayment of the secured debt. In this case, the creditor can directly enforce the debtor’s co-ownership.

The circumstance also changes from time to time that there is no possibility that compulsory execution against the debtor's share of co-ownership will remain. The secured debt of the right to collateral security is continuously increased or decreased until it is determined in itself, and in particular, if the debtor is a co-owner's surety, the amount of the secured debt of the right to collateral security can change regardless of the co-owner's ability. It is unreasonable to determine whether the requirements for the exercise of the right to claim a partition of co-ownership can change from time to time regardless

4) It is unreasonable to allow the vicarious exercise of the right to claim partition of co-owned property in order to satisfy the monetary claims of ordinary creditors on the ground that there is a method to sell the whole co-owned property at auction and divide the price thereof.

The Korean Civil Act and the Civil Execution Act do not grant general creditors the right to jointly sell any property that is not owned by an obligor, along with the obligor’s property. Likewise, in cases where such property is in a relationship of joint collateral security, if there is no possibility to remain at the auction of the obligor’s property which is the object of the joint collateral security, the ordinary creditors are bound to leave until the joint collateral security is extinguished by repayment or the joint collateral security is executed. This is merely a situation where a general creditor who did not establish a prior collateral security right is obliged to accept

If a vicarious exercise of the right to claim a partition of co-owned property is permitted to the general creditor who wants to satisfy the monetary claim, it is reasonable to lend the form of co-owned property to practically grant the right to file a collective auction application, and allow an auction of the property which is not owned by the debtor. The debtor’s property is a co-owned share, and there is no special reason to provide the general creditor with any special benefit

This is not consistent with the original purpose and purport of the co-owned property partition system in order to fairly divide the co-owned property and smoothly resolve the co-owned relationship according to the court's decision if the co-owner who wishes to resolve the co-owned relation is freely consulted with other co-owners.

5) Although the legal relationship can be realized by resolving existing co-ownership relations upon the exercise of the right to partition of co-owned property and distributing co-owned properties among co-owners, it is not possible to exercise the right to claim partition of co-owned property arbitrarily by determining the specific method or result of partition. Thus, the vicarious exercise of the right to claim partition of co-owned property cannot necessarily be helpful

The principle of partition of co-owned property is that co-owners are divided by agreement, and where the consultation on division has already been concluded among co-owners, it is not allowed to request the division or maintain the lawsuit for partition of co-owned property which has already been filed by lawsuit (see, e.g., Supreme Court en banc Decision 2011Du1917, Nov. 21, 2013). Where consultation is not concluded, the judicial division is in kind (see, e.g., Supreme Court Decision 91Da2728, Nov. 12, 1991).

Each co-owned share is divided into real estate as a joint collateral of the right to collateral security, and each real estate acquired by co-owners after division is also the joint collateral of the right to collateral security. Thus, even if the debtor sells real estate acquired by the debtor in kind due to the division in kind, the full amount of the secured debt of the joint collateral security should be paid out from the auction proceeds. The circumstances in which the compulsory execution of the debtor's responsible property is unlikely due to the joint collateral security doctrine do not change before and after the division in kind. Accordingly, the creditor does not have the right to file an application for a collective auction for each real estate after

6) The right to claim partition of co-owned property is merely a right that contains the possibility of lead to such form, not a “right to claim partition of property” that excludes all the above cases and only demands the payment division. There is no such “right to claim partition of property.”

Article 269(2) of the Civil Act which provides that the court may order the auction of goods in a case where the article jointly owned is unable to divide it in kind or the value thereof is likely to decrease remarkably due to the division, among the methods of partition of co-owned property, the whole co-owned property is sold by auction, the distribution of dividends under Article 368(1) of the Civil Act is made, and the secured claim of the joint collateral mortgage is apportioned in proportion to the auction price of each co-owned share.

In cases of partition of co-owned property based on a judgment, the court may determine a reasonable method of partition at a free discretion, taking into consideration the co-ownership share ratio, use and profit-making status of co-owners, the location, area, surrounding circumstances, use value, price, etc. of the co-owned property, and all the circumstances related to the co-owned property.

In determining whether to issue an order to divide the price under Article 269(2) of the Civil Act, it is sufficient to determine whether there is a concern about a significant decrease in the share of each co-owner due to the in-kind division, taking into account all the circumstances related to co-ownership and co-ownership. It is not necessary to determine the method of division, taking into account whether the co-owner’s creditor can obtain satisfaction of the claim, contrary to the purpose and purport of the co-ownership of co-owned property.

The pecuniary claimant may obtain satisfaction of the claim by taking advantage of a Co-owned property partition process as above, but the court does not necessarily have to protect the obligee’s interest. In light of the result that the pecuniary claimant should accept when the co-owned property was divided in kind according to the principle method, it is not particularly unreasonable even if the pecuniary claimant does not allow the exercise of the right to partition co-owned property, which is based on the specific method of partition of co-owned property.

7) Generally, the legal effect arising from the exercise of the right to partition is specified, but the legal effect arising from the exercise of the right to partition of co-owned property is finally determined by free will of co-owners and court discretion judgment revealed in the process of exercising the right. In a case where co-owners exercise the right to partition of co-owned property, what legal effect is acceptable. This is because the content of the right to partition of co-owned property is just the same. The co-owned property is divided in a way that the person who has exercised the right to partition

The Civil Act does not know that the right to claim a partition of co-owned property is exercised only when a specific legal effect, such as the division of proceeds, takes place. It does not change because the right is the vicarious exercise.

8) In a lawsuit claiming a partition of co-owned property based on subrogation of creditor, the issue of whether an obligee can secure the actual performance of a monetary claim depending on what the court deliberated on the merits and concluded. If the method of partition is not helpful to secure the actual performance of a monetary claim, the vicarious exercise of a right to partition of co-owned property is difficult to recognize the necessity for preservation, and if it is not recognized as necessary to preserve in a creditor subrogation lawsuit, the lawsuit is unlawful and thus the court should dismiss it (see Supreme Court Decision 2010Da39918, Aug. 30, 2012).

If a vicarious exercise of the right to partition of co-owned property for preserving a monetary claim is widely permitted, it becomes different depending on the result of final hearing on the merits whether the requirements for litigation (the necessity of preservation) which is the subject of judgment prior to the merits have been met. If the court did not order the partition of co-owned property on the ground that it does not need to be preserved even if it concluded with regard to the most reasonable method of partition of co-owned property, and has to dismiss the lawsuit, it goes against the essence of the lawsuit for partition of co-owned property

Although res judicata of a judgment in a lawsuit affects the defects in the requirements for the lawsuit established in the judgment, if the parties institute a lawsuit again by supplementing the defects in the requirements for the lawsuit (see, e.g., Supreme Court Decision 2002Da70181, Apr. 8, 2003). In a vicarious exercise of the right to claim a partition of co-owned property for preserving a monetary claim, the necessity of preservation, which is the requisite for the lawsuit, depends on the method of partition of the jointly-owned property, which is the subject matter of judgment as above. Therefore, even if the judgment dismissing the lawsuit for the partition of co-owned property becomes final and conclusive, there is no res judicata judgment as to what is the reasonable method of partition, and thus, a creditor may repeatedly institute a partition of co-owned property on the ground that the co-owner asserted for the partition of co-owned property, thereby supplementing the need for preservation, which is the requisite for the partition of co-owned property. This is very unreasonable in that it is completely different

9) The exercise of the right to claim a partition of co-owned property for preserving the monetary claim is unjust interference with the obligor’s free act of property management.

A) In a case where a creditor is unable to immediately enforce a debtor’s co-owned share because he/she is not likely to have left for himself/herself, it is difficult to expect satisfaction of claim of a monetary creditor if the whole co-owned property is not auctioned notwithstanding the exercise of the right to claim co-owned property partition, or Article 368(1) of the Civil Act is not applicable. The result of auction of the whole co-owned property due to the exercise of the right to claim co-owned property partition is to fundamentally deprive not only the debtor, but also the majority parties holding the co-owned share of the right to use and benefit from the co-owned property. Even if any of the co-owners does not wish to divide the co-owned property, it is too harsh for co-owners including the debtor to

B) If the obligor’s co-owned share is put up for auction, other co-owners may purchase the obligor’s co-owned share at the same price as the highest bid price pursuant to Article 140 of the Civil Execution Act. Through this, the relationship between co-owners and the previous use relation as to the co-owned share can be maintained. However, if the co-owned share is put up for auction, other co-owners may not have any means to maintain the previous use relation with the co-owned share

C) In contrast, the creditor still is likely to obtain satisfaction from the debtor's co-ownership, and the partition of co-owned property does not substantially affect the increase or decrease of responsible property.

D) Furthermore, in the process of realizing the partition of co-owned property upon the claim for co-owned property partition, if co-owned property is divided in such a way that it does not assist the satisfaction of the obligee’s monetary claim such as the in-kind division, the obligee can exercise the obligee’s subrogation right, and the co-owner is forced to make a partition of co-owned property at the time when the co-owner does not want it.

3. Judgment on the grounds of appeal and modification of precedents

A. Ultimately, the lower court determined that the Plaintiff can exercise the right to partition of co-owned property as to the apartment of this case in order to preserve his own monetary claim, thereby adversely affecting the conclusion of the judgment. The allegation in the grounds of appeal assigning this error is with merit.

B. Supreme Court Decision 201Da56297 Decided December 10, 2015, which held that, where an auction procedure as to co-owned shares is revoked pursuant to Article 102 of the Civil Execution Act on the grounds that prior rights, such as collateral security, etc., exist in the jointly-owned property and that there is no possibility of remaining, the pecuniary claimant of the co-owner may exercise the right to partition co-owned property in subrogation to the extent inconsistent with the opinion of this judgment.

4. Conclusion

Therefore, without further proceeding to decide on the remainder of the grounds of appeal, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices, except for a dissenting opinion by Justice Kwon Soon-il, Justice Kim Jae-hyung, Justice Park Jung-hwa, and Justice Kim Young-soo, and a concurrence with the Majority by Justice Min You-sook and Justice Kim Jong-hwan, and a concurrence with

5. Dissenting Opinion by Justice Kwon Soon-il, Justice Kim Jae-hyung, Justice Park Jung-hwa, and Justice Kim Seon-soo

A. Although an obligor, in excess of his/her debt, owns co-ownership of real estate, compulsory execution against the obligor's co-ownership by means of joint collateral existing on co-owned real estate is impossible. On the other hand, if the entire co-owned real estate is sold by means of co-owned property partition, according to Article 368(1) of the Civil Act, in proportion to the auction price of each co-owned share, the obligor can share the secured claim of co-owned property and share to co-owners who are the obligor can be allocated to the obligor (hereinafter "the instant type"). As described in the majority opinion, the instant case also corresponds to this.

The Majority Opinion states that, on the grounds that there is no “necessary for preservation,” etc., a creditor should exceptionally allow the exercise of the right to partition of co-owned property on behalf of the debtor, who is a co-owner, to preserve the monetary claim. The same applies

However, it is difficult to agree with the Majority Opinion. In the instant case, the obligee’s exercise of the right to partition co-owned property, which belongs to the obligor’s property right, should be allowed so that the performance of the claim can be effective and appropriate. The reasons are as follows.

1) Article 404(1) of the Civil Act provides that “The obligee may exercise the obligee’s right to preserve his/her claim” in the main text of Article 404(1) provides that the obligee’s right to exercise the obligee’s right is simply and simply limited to the requirements for exercise of the obligee’s right to exercise the obligee’s right, and only the proviso provides that “the obligee

In this case, the issue is whether the creditor can exercise the right to partition of co-owned property on behalf of the debtor. It is clear that the debtor's right to partition of co-owned property belongs to the debtor's right. Therefore, the key issue is whether the creditor's right to partition of co-owned property is "to preserve his own claim.

The term “in order to preserve one’s own claim” under Article 404(1) of the Civil Act means that an obligee intends to secure the realization of a claim against an obligor. The exercise of a debtor’s right by subrogation is necessary to ensure that the obligor’s performance of his/her claim is valid and appropriate because there is a risk that the obligee’s exercise of right by subrogation may not obtain complete satisfaction of his/her claim if it is not exercised by subrogation

The Supreme Court, in principle, acknowledged the need for preservation in cases where a creditor is a monetary claim to be preserved by the creditor upon the exercise of a creditor's subrogation right, if the debtor is in need of prevention of reduction of general property due to lack of financial resources (see, e.g., Supreme Court Decisions 63Da122, Apr. 25, 1963; 69Da835, Jul. 29, 1969). Here, the Supreme Court recognizes the need for preservation in principle that the debtor has no financial capacity for the debtor, i.e., insolvency is in excess

However, the Supreme Court has mitigated the requirements for exercising the creditor's subrogation right by allowing the creditor to exercise the creditor's subrogation right without requiring the debtor's insolvency in cases where the creditor's claim to be preserved is a specific claim such as the right to claim ownership transfer registration (see, e.g., Supreme Court Decisions 64Da804, Dec. 29, 1964; 91Da483, Oct. 27, 1992; 9Da38699, May 8, 2001). It is because the preservation of a specific claim is a matter that is irrelevant to the debtor's insolvency.

Since then, in exceptional cases where a creditor’s claim is a monetary claim and a creditor’s subrogation right, the Supreme Court acknowledged the creditor’s subrogation right without considering the debtor’s insolvency (see, e.g., Supreme Court Decisions 2001Da52506, Jan. 25, 2002; 2013Da71784, Dec. 11, 2014; 2014Da89355, Jul. 11, 2017).

In the exercise of creditor's subrogation right for the preservation of monetary claims, the attitude of the majority opinion to require additional claims in addition to debtor's insolvency and strictly recognize the necessity of preservation is contrary to the basic direction of the precedent that extended the scope of allowing creditor's subrogation right by relaxing the requirements of insolvency.

2) If a debtor is insolvent, it is necessary to preserve monetary claims by exercising creditor’s subrogation right in principle. Thus, if a debtor owns a co-owned share of real estate in excess of debt, the monetary claimant may exercise the right of co-owned property partition right in subrogation, which belongs to the debtor’

Unless otherwise agreed by a co-owner, a co-owner may at any time demand a partition of the co-owned property (Article 268 of the Civil Act). Co-ownership is a form of co-ownership in which each co-owner can independently control each subject matter without any human relation. Since one ownership of a thing is divided in quantity and belongs to several persons, each co-owner has a unilateral right to resolve the existing co-ownership relationship by claiming a partition of the jointly-owned property and realize the legal relationship that distributes the jointly-owned property among the co-owners (see Supreme Court Decision 91Da2728, Nov. 12, 191, etc.).

The right to partition of co-owned property is one of the property rights held by co-owners, which are incidental to co-ownership relations, and the obligee subrogation is not allowed. Co-owned property partition is one of the natural forms in which the co-owner's property rights are exercised, and the freedom of partition of co-owned property is the essential feature that the co-ownership is distinguishable from other co-ownership

3) In the instant case, a creditor’s vicarious exercise of the right to claim a partition of co-owned property, which belongs to the debtor’s property right, becomes an effective and appropriate means to secure a real performance

A) In the instant case, it is practically impossible to enforce compulsory execution against the obligor’s co-ownership of the jointly owned property, which is a responsible property, due to the joint collateral existing on the co-ownership of each immovable property. When an obligor’s co-ownership is sold at auction only, the obligor’s co-ownership should reimburse the obligor’s joint collateral security at the cost of auction in accordance with Article 368(2) of the Civil Act, and thus, it is unlikely to remain. Accordingly, an auction for the obligor

In the case of the apartment of this case, it is the most reasonable way to divide the price by ordering the auction of the whole co-owned property, in consideration of the structure, area, share ratio of co-owners, and current status of use and profit-making in kind. In such a case, if the creditor exercises the right to claim partition of co-owned property by subrogation of the debtor, the court ordering the auction of the whole co-owned property, thereby sharing the secured claim of the co-owned property joint collateral in proportion to the auction price of each co-owned share pursuant to Article 368(1) of the Civil Act. Thus, from the debtor's co-owned share auction price, the co-owned share of the secured claim of the co-owned property can be repaid to the debtor who is a co-owner, and the creditor can obtain the satisfaction of the monetary claim only through this.

B) The Majority Opinion states that a joint mortgagee’s exercise of a right to share of co-ownership by way of the obligor’s repayment of the debt guaranteed by the mortgagee, and thus, the obligee’s exercise of a right to share of co-ownership by not later than that time. However, the obligee’s exercise of a right to share of co-ownership is not any help to ensure the actual performance of the claim. However, in the context of transaction, there is a case where a right to collateral security is created by setting a long-term agreement with the obligor for repayment of the secured obligation, such as a housing mortgage loan on the premise of a long-term installment repayment (five years short) over a period of time (50 years short), and even if the secured obligation has been finalized, it can be found that the mortgagee did not exercise a right to share of co-ownership for a long time.

In determining the necessity for preservation, it does not require that the exercise of subrogation right by the obligor is the only means of remedy (see Supreme Court Decision 2006Da82700, 82717, May 10, 2007). As above, in cases where there is a disability that makes it impossible to enforce compulsory execution against the obligor’s responsible property, vicarious exercise of the obligor’s property right is a means to resolve the cause of disability and ensure the implementation of the claim effectively and appropriately, the need for compensation can be recognized.

C) The Majority Opinion states that even if the co-owned real estate is sold in whole, it is difficult to legally evaluate liability property increase, and the vicarious exercise of the right to claim co-owned property is not directly related to the preservation of responsible property. However, in a case where a co-owned property partition is likely to substantially decrease if the value of the co-owned property is divided in kind, the auction of the co-owned property is ordered, and the price of the co-owned property is changed according to the method of division, and the sale price of the co-owned property is increased when the co-owned property is sold more than when the co-owned property is sold.

The Majority Opinion is open to the effect that the result of exercising the right to partition of co-owned property has an effect on the actual responsible property.

4) If a vicarious exercise of the right to partition of co-owned property is permitted, the Majority Opinion practically grants general creditors the right to file a collective auction on the co-owned property. However, even if the co-owned property is sold at auction upon the claim for partition of co-owned property, there is no obstacle to the joint mortgagee’s preferential repayment of his/her claim, and thus, it cannot be deemed disadvantageous to the joint mortgagee. If the obligor, who is a co-owner, claims the partition of co-owned property by himself/herself, becomes a co-owner’s claim for partition of co-owned

As long as compulsory execution against a debtor's share in this case is difficult, it is necessary for an obligee to take other measures to preserve his/her own claim. If it is not acknowledged as the necessity for preservation as stated in the majority opinion, the obligee is unable to exercise his/her claim in a timely manner despite having the obligor's responsible property and obtaining satisfaction of the claim, and the obligor is in violation of justice and equity by gaining the anti-private interest in which the obligor is practically exempted from compulsory execution of the general obligee solely on the ground that the obligor's responsible property is public property.

It is a legal right based on Article 404 of the Civil Act that can take measures necessary to ensure the effective and appropriate performance of monetary claims by exercising the right of an obligor, which is insolvent by a general creditor, is also a legal interest. The Majority Opinion deeming the legal effect of the exercise of the exercise of the right to partition of co-owned property as a de facto benefit granted to a general creditor, is unreasonable.

5) In the instant case, it is difficult to enforce compulsory execution against the co-ownership of the obligor’s co-ownership of the responsible property is because the proviso of Article 368(2) of the Civil Act, which provides that the mortgagee may receive full reimbursement of the secured debt from the auction proceeds if a part of the real estate, which is the object of the joint collateral security, is an application of the first sentence of Article 368(2) of the Civil Act. However, the result

Article 368(1) of the Civil Act protects the lower-class mortgagee who was disadvantaged by exercising the right of choice of the joint mortgagee (see, e.g., Supreme Court en banc Decision 2013Da1692, Dec. 21, 2017). Moreover, Articles 481 and 482 of the Civil Act stipulate a subrogation system to regulate the interests of the owners of each real estate, junior mortgagee and other creditors by distributing the responsibility of each real estate to the extent that it does not infringe upon the right of choice of the joint mortgagee and the right of preferential reimbursement. Furthermore, the latter part of Article 368(2) of the Civil Act provides for the subrogation system to ensure that the result of the final distribution is the same as that of the simultaneous distribution in cases of the so-called temporary distribution where the proceeds of the auction of part of the real estate which is the object of joint collateral security are distributed first to all other creditors (see, e., Supreme Court en banc Decision 2013Da1692, Dec. 21, 2017).

In light of the above attitude of the Civil Act, if the auction proceeds of the real estate which is the object of the joint collateral security are not undermined the interests of the joint collateral mortgagee, and if there is a method to distribute the real estate at the same time, it is reasonable to allow it. In the co-ownership relationship with the intrinsic characteristics of the freedom of partition of co-owned property, the obligee’

6) The requirement of “undivided in kind” does not physically strictly interpret it, but includes cases where it is difficult or inappropriate to divide it in kind in light of the nature, location, area, situation of use, and the use value after the division (see Supreme Court Decision 2002Da4580, Apr. 12, 2002). Accordingly, in trial practice, the payment in kind is frequently made.

The majority opinion does not need to protect creditors' interests when the article jointly owned is divided into money in kind in light of the status of creditors when the article jointly owned is divided into money. However, as in this case, if it is difficult to think of the division in kind at the beginning and it is reasonable to divide the price in kind, such comparison

Furthermore, Article 269(2) of the Civil Act provides that one of the methods of partition of co-owned property shall be divided by auction of the whole co-owned property and the proceeds thereof. Article 274(1) of the Civil Execution Act provides that auction for partition of co-owned property shall also be conducted in accordance with the same manner as auction to exercise the security right. Thus, the result of the application of Article 368(1) of the Civil Act when each co-owned share in the relationship of co-owned property as co-owned property is auctioned as co-owned property and dividends are already scheduled under the Civil Act and the Civil Execution Act. The creditor who exercises the right of subrogation of co-owned property

Meanwhile, a partition of co-owned property should be made through the method of payment in kind, but the creditor does not necessarily allow a co-owner to secure a real performance of his/her claim. Division by means of having other co-owners pay the appropriate and reasonable price of his/her share to the other co-owners (see, e.g., Supreme Court Decision 2004Da30583, Oct. 14, 2004). If other co-owners pay an appropriate value to the debtor instead of acquiring the debtor's share, the creditor, as co-owners, can enforce compulsory execution against the money that the debtor would receive after the partition of co-owned property.

7) In exercising the right to partition of co-owned property, it is not reasonable to grant a vicarious exercise of the right to partition of co-owned property for preserving the monetary claim, on the grounds that the co-owned property may be divided in a way different from one another, and thus, it may not be helpful to secure real performance of the monetary claim.

In a specific case, it is sufficient to examine whether preservation is necessary and individually decide whether to allow vicarious exercise of the right to partition of co-owned property. In a case where the court determines that it does not assist in securing the practical performance of the monetary claim as a co-owned property partition, it may prevent an obligee from exercising the right to partition of co-owned property on

In this regard, the majority opinion held that there is no need to preserve the obligee’s exercise of the right of subrogation after examining the method of partition falling under the merits of the lawsuit claiming a partition of co-owned property. However, in practice, such form is not a special issue (see, e.g., Supreme Court Decision 75Da1086, Jul. 13, 1976). In a creditor subrogation lawsuit, the court’s rejection of the lawsuit filed by the obligee in subrogation of the obligor on the grounds that there is no need to preserve the case at the time of the closing of pleadings after hearing and making a judgment on the merits may take place in subrogation of other judicial rights, not the right of claim for partition of co-owned property. Rather, it is not desirable to strictly distinguish the “examination of the requirements prior to the merits” and “examination stage on the merits” as the majority opinion. In practice, it is common sense that the court conducts a trial and a hearing on the merits of the lawsuit in order to promote a single and final settlement of dispute.

The Majority Opinion holds that, even in a lawsuit claiming a partition of co-owned property based on subrogation, the court did not order the partition of co-owned property according to the same reasoning, as there is no need to preserve even if the court completed the deliberation and judgment on a reasonable method of partition. However, even in a lawsuit claiming a partition of co-owned property brought by the co-owner himself/herself, there is a case where the court completed the deliberation and judgment on a reasonable method of partition, or where the judgment ordering the partition of co-owners cannot be

8) The obligee’s exercise the right to claim partition of co-owned property on behalf of the obligor in order to preserve the monetary claim, and cannot be deemed as an unjust interference with the obligor’s free act of property management

A) Since a creditor’s subrogation right exercises a creditor’s right on behalf of a debtor on behalf of the creditor, it is basically premised on a certain interference with the debtor’s property right and does not require the debtor’s consent (see Supreme Court Decision 2014Da211336, Sept. 25, 2014). Article 404(1) of the Civil Act does not stipulate “unfair interference” as a passive requirement for the exercise of the creditor’s subrogation right. Therefore, the issue of whether to restrict the exercise of the creditor’s subrogation right on the ground that the act of free property management of the debtor is an unreasonable interference is a matter to be carefully decided

The issue of "unfair interference" in a creditor's subrogation right is mainly an issue that needs to alleviate the requirements of the debtor's insolvency in the exercise of the creditor's subrogation right to preserve a monetary claim (see, e.g., Supreme Court Decisions 2013Da71784, supra; 2014Da89355, etc.) or a case that exercises the creditor's subrogation right to preserve a specific claim that is irrelevant to the debtor's financial ability (see, e.g., Supreme Court Decision 2006Da82700, 82717, May 10, 2007).

In a case where the exercise of the right of subrogation by the Supreme Court Decision 2010Da50014 Decided May 23, 2013 and the Supreme Court Decision 2010Da50014 Decided May 23, 2013 held that the exercise of the right of subrogation by the obligor constitutes an abuse of rights, such as where the exercise of the right of subrogation by the obligor is not helpful to the obligee even if the obligor exercises the right of the obligor. However, in such exceptional cases, there are very exceptional circumstances where the exercise of the right of subrogation by the obligor is deemed to constitute an abuse of rights. In such an exceptional case, it is not desirable to generalize “unfair interference” as a requirement for the exercise of the right of subrogation by the obligee to preserve the claim. If the obligee’s exercise of the right by the obligor does not exercise the right of subrogation and does not constitute an abuse of rights, it should not be easy to deny the exercise of the right

B) The sole exercise of a creditor’s right to form the debtor’s property by subrogation does not immediately interfere with the debtor’s property management act. The Supreme Court held that the exercise of the creditor’s right to withdraw from the partnership is possible even in the case where the exercise of a creditor’s right to terminate a membership agreement was an issue (see Supreme Court Decision 88Meu19606, Nov. 10, 1989). The Supreme Court held that the exercise of a creditor’s right to withdraw from the partnership by subrogation of the debtor’s right to withdraw from the partnership, who is a member of a golf club (see Supreme Court Decision 2006Da8270, May 10, 2007).

C) Compared to compulsory execution against co-ownership, auction of co-owned property cannot be deemed as particularly disadvantageous to a debtor. Rather, in a case where the co-owned property is sold more than in the case of selling only co-owned shares, the sale price of co-owned shares itself can increase. Inasmuch as compulsory execution is basically premised on the deprivation of the debtor’s right to dispose of the property responsible for the co-owned property, it is difficult to view that the creditor’s right to dispose of the co-owned property is restricted

D) Even if the existing use relation of the co-owned property, which was performed at the time when co-owners do not want the co-owned property partition in subrogation of the right to claim co-owned property, becomes extinct, it is merely the limitation that co-owners own the co-owned property without the sole ownership. If one of the co-owners wishes to partition the co-owners, even if other co-owners do not want it, the procedure for partition of co-owned property commences even if they do not want it. The co-owners can be divided at any time, and the obligee exercises by subrogation of the obligor the right to exercise unilaterally as one of the co-owners.

E) The court may divide the co-owned property in a reasonable manner with free discretion without seeking the assertion of the claimant for partition of co-owned property (see, e.g., Supreme Court Decision 91Da27228, Nov. 12, 191). The auction of the co-owned property is conducted only when the court examines in the lawsuit claiming partition of co-owned property, which is an essential co-litigation to which all co-owners are the parties, and determines the payment in installments reasonable. An auction of co-owned shares by co-owners who are not the debtor is only the effect of legal relations established by exercising

F) A co-owner’s preferential purchase right under Article 140 of the Civil Execution Act is a provision for the protection of the interests of other co-owners in cases where a part of co-owners’ co-owners’ co-owners’ co-ownership is sold at auction. In a case where co-owners’ co-ownership is constituted a partition of co-owned property on the premise of a cost-sharing method where the whole co-owned property is sold at auction, there is no room to apply the foregoing provision. Co-owners who wish to maintain the existing use relationship as to the co-owned property may have an opportunity to purchase shares of co-owners who have requested partition during the process of partition consultation. The court may also determine the partition of co-owners’ share in kind by means of a split-off, which maintains the existing use relationship of other co-owners’ existing co-owners. Furthermore, there may be cases where the sale amount by auction falls short of the market price of the real property.

9) While the Majority Opinion deems that the right to claim a partition of co-owned property may be subject to the exercise of creditor’s subrogation right, it is extremely exceptionally permitted for the creditor to exercise the right to claim a partition of co-owned property on behalf of the debtor who is a co-owner in order to preserve the monetary claim, and it cannot be allowed in the instant case type. This is not reasonable as seen above, but it is difficult to agree because the exceptional situation where the exercise of the right to claim a partition of co-owned property for preserving the monetary

B. Therefore, the Supreme Court Decision 2013Da56297 Decided December 10, 2015, which allowed the exercise of the exercise of the right to partition of co-owned property in the instant case, is justifiable, and there is no need to revise the above legal doctrine as stated in the Majority Opinion.

C. Next, I examine the Defendant’s grounds of appeal and the conclusion of the instant case.

1) Judgment on the grounds of appeal as to exercise of the right to partition

The lower court determined that the Plaintiff could claim a partition of co-owned property as to the apartment of this case on behalf of Nonparty 1, the monetary claimant, on behalf of Nonparty 1, on the ground that the auction of the apartment of this case by the method of partition of co-owned property is not possible, but a considerable amount of money can be distributed to Nonparty 1, the co-owner, and that the Plaintiff could not claim a partition of co-owned property on the apartment of this case on behalf of Nonparty 1.

In light of the above legal principles and records, the judgment of the court below is just. Contrary to the allegations in the grounds of appeal, the court below did not err by misapprehending the legal principles as to the subject and necessity of preservation of creditor's subrogation right

2) Judgment on the grounds of appeal as to the partition of co-owned property

The lower court determined that the method of selling the apartment of this case by auction was the most equitable and reasonable method of partition of co-owned property according to the co-ownership of Nonparty 1 and Defendant’s co-ownership, on the grounds that it is very difficult to divide the apartment of this case in kind with the share, and it is possible to divide it in kind, but the value of each part is considerably lowered and the legal relationship of the interested parties

Examining the relevant legal principles and records, the lower court did not err by misapprehending the legal doctrine on the method of partition of co-owned property, contrary to what is alleged in the grounds of appeal

3) Determination on the ground of appeal as to the obligor’s exercise of right

The lower court determined that: (a) the Defendant actually repaid Nonparty 1’s inheritance obligation related to the instant co-ownership share in accordance with the agreement on division of inherited property; and (b) it cannot be deemed that Nonparty 1 exercised the right to co-ownership of this case. Examining the relevant legal principles and records, the lower court did not err in its judgment by misapprehending the legal doctrine on the requirements to exercise the subrogation right, contrary to what is alleged in the

4) The Defendant’s appeal is without merit and thus dismissed.

D. For the foregoing reasons, we express our dissent from the Majority Opinion.

6. Concurrence with the Majority by Justice Min You-sook and Justice Kim Jong-hwan

A. A series of processes from the commencement to the enforcement of the judgment is the conflict of interests between the opposing parties, and the court must reasonably resolve the dispute by clarifying the contents and limitations of the rights and obligations of the parties.

In relation to the issues of this case, it is necessary to first examine the practical practice of the partition of co-owned property judgment and the legal principles of revocation of fraudulent act as to the division

1) First, in the practice of the lawsuit claiming partition of co-owned property, notwithstanding the principle of spot partition under the Civil Act, the court orders the auction of co-owned property to divide the price (hereinafter referred to as “auction division”) by ordering the auction of the co-owned property. There are most cases where it is difficult to choose in light of statutory restrictions, the current status of the subject matter, and the utilization relation, and the case where the subject matter of partition is apartment as in the instant case is also impossible.

The co-owned real estate shall be owned by a part of the co-owners, and it seems possible at any time to divide the co-owners into the spot by the compensation for the full-value of the co-owners to pay the price of the share to other co-owners, but it is possible to have a sufficient cash asset to the co-owners who intend to own the real estate. If there is no sufficient cash asset to the co-owners who intend to own the real estate, other co-owners are bound to enforce a compulsory execution on the relevant real estate based on the judgment ordering the payment of the

When an auction procedure is commenced in accordance with the judgment on partition of co-owned property which allowed an auction division, including the instant case, the entire co-owned real estate was located in the market, and the person who presented the highest amount on the basis of financial resources acquires all the co-owned property. When an auction is conducted only for co-owned shares, co-owners are given the opportunity to purchase the co-owned share, which is an auction object, pursuant to Article 140 of the Civil Execution Act, but in principle, co-owners cannot maintain the previous right to the co-owned property unless the highest bidder is the highest bidder. In the auction for the partition of co-owned property, due to the nature of the auction procedure, a person who is not the co-owners is the buyer, and the co-owners may lose the ownership of the co-owned property. Furthermore, there is a possibility of acquiring real estate by using the information acquired in the process of partition of co-owned property in the process

2) Next, even in cases where an inherited property that was not the original debtor's responsible property upon commencement of inheritance after the commencement of inheritance after the occurrence of the preserved claim, if the joint collateral against a general creditor is reduced as a result of the agreement on the division of inherited property by co-inheritors, including the debtor in excess of the debt, then the creditor becomes a fraudulent act against the creditor as well as the debtor's existing disposal of the property (see Supreme Court Decision 2007Da29119, Jul. 26, 2007

B. A new problem arises if the reality of the judgment on partition of co-inheritors and the principle of exercising the right to revoke a fraudulent act regarding the consultation on partition of co-inheritors as to the division of co-inheritors is combined with the exercise of the right to claim partition of co-inheritors, which is the issue of this case. In other words, even though the inherited property was divided in accordance with the agreement on division of co-inheritors, which is consistent with the intention of all co-inheritors, including the debtor, and the obligee exercised the right to claim partition of co-inheritors as to the inherited property division agreement due to the debt held before the commencement of the inheritance, the obligee exercised the right to claim partition of co-inheritors on behalf of the debtor on the ground

The instant apartment is also applicable to this case. The instant apartment was deceased in the year 201 by Nonparty 2, who was the owner, and thereafter the ownership transfer registration was made in the future of the Defendant following the agreement on the division of inherited property by all co-inheritors. The Plaintiff was a transferee prior to the credit card usage claim against Nonparty 1, who was the co-inheritors (the occurrence before the time of the occurrence in 1999), and the share of one seventh of the instant apartment was registered in the future of Nonparty 1 as a result of the fraudulent act revocation lawsuit.

In light of these facts, the apartment house of this case or its co-inheritors did not constitute the obligor’s responsible property at the time when the preservation claim of this case was established. Although the co-inheritors agreed on the division of inherited property with the content of the Defendant’s sole inheritance among themselves, it was a fraudulent act and only the co-inheritors’ co-inheritors’ share was restored to Nonparty 1’s responsible property. Furthermore, the property owned by Nonparty 1’s responsible property is not the apartment house of this case itself but the share of Nonparty 1’s responsible property. The agreement on the division of inherited property was concluded with the consent of the co-inheritors, who is the co-inheritors, and the registration of the transfer of inherited property was completed to the Defendant. Accordingly, it appears that any of the co-inheritors

Nevertheless, it is extremely harsh for the Defendant to hold the entire apartment of this case, which is inherited property, at auction solely on the ground that it is difficult to enforce compulsory execution because it is difficult for Nonparty 1’s general creditors to sell 1/7 of the apartment of this case, which is the responsible property, to hold the apartment of this case at auction. Rather, in a case where compulsory execution on the responsible property is not possible, it is reasonable to deem that the general creditor cannot execute the auction in principle pursuant to the Civil Execution Act. On the ground that the co-owner’s claim for partition of co-owned property is permitted at any time, it is not necessary to permit the co-owner’s claim for partition of co-owned property without restriction. The latter’

C. If a creditor cannot exercise the right to partition a co-owned property by modifying the previous precedents, there is an inevitable case where the creditor is limited the opportunity to recover the claim when the debtor disposes of part of the share of the sole ownership to avoid future compulsory execution.

However, in a case where a debtor disposes of a part of the shares of the immovables owned by the debtor, if the debtor has a financial ability due to other responsible assets, etc., it would not hinder the recovery of the creditor’s claim. If the debtor’s financial ability is insufficient and bring about shortage of responsible assets due to the above disposal act, the creditor may exercise his/her right of revocation pursuant to Article 406 of the Civil Act and be protected. On the other hand, even though at the time of the debtor’s disposal of shares, there was a financial ability at the time of the debtor’s disposal, but at the

In the end, it is an issue of balancing legal interests whether to allow vicarious exercise of the right to claim partition of co-owned property in exceptional cases as above, or whether to protect co-owners who are not debtors, even if the opportunity to recover claims can be restricted, so as not to put the risk of leaving the property at auction.

D. I point out this point and express my opinion in supplement of the Majority Opinion.

7. Concurrence with the Dissenting Opinion by Justice Park Jung-hwa

A. In general, if a pecuniary claimant can obtain satisfaction through compulsory execution against the obligor’s co-ownership share, it is not necessary to exercise in subrogation the obligee’s right to partition co-owned property on behalf of the obligor. However, in the instant case type, the most effective and appropriate means for securing obligee’s claim for partition of co-owned property is exercised

While the majority opinion acknowledges that the right to claim a partition of co-owned property is a property right and its exercise is not exclusively an exclusive right, the right to claim a partition of co-owned property as to real estate for preserving monetary claims is not allowed except in extremely exceptional cases. However, upon examining the reasons stated in the majority opinion, the right to claim a partition of co-owned property on the premise that the right to claim a partition of co-owned property cannot be the object of the creditor’s subrogation right in any case, and it is difficult to present exceptional cases where the right to exercise subrogation can be exercised. Furthermore, in exceptional cases where the right to claim a partition of co-owned property can be exercised by subrogation, the majority opinion does not state how the reasons presented in the majority opinion can be overcome. In this regard, the majority opinion cannot be free from criticism that there is a high uncertainty only without presenting reasonable standards and predictability

B. In the instant case type, without permitting the vicarious exercise of the right to claim partition of co-owned property for preserving monetary claims in accordance with the Majority Opinion, the obligor cannot easily resolve the problem that is able to evade compulsory execution by forming a co-ownership relationship with the responsible property. The following examples can be considered:

For example, a right to collateral security was established on real estate equivalent to KRW 100 million at the market price of the debtor's ownership. However, if the debtor transfers 1/2 of the real estate to another person in advance with sufficient financial resources due to concern about future compulsory execution, then the general creditor is unable to enforce compulsory execution against the above real estate. This is because, even if the debtor's co-owned share amounting to KRW 50 million (=10 million x 1/2) falls short of KRW 60 million of the secured debt amount of the right to collateral security (=60 million), it is difficult for the creditor to cancel the debtor's disposal of his/her co-owned share with his/her own financial resources, so it is difficult for the creditor to constitute a fraudulent act.

Ultimately, according to the Majority Opinion, a debtor who owns or intends to acquire real estate on which a security right has been created can avoid compulsory execution by registering such real estate as co-ownership of shares. On the other hand, creditors have no means to resolve the obligor’s sharing of responsible property, and there is no choice but to leave the same. It is unreasonable to deem this situation as unreasonable.

C. According to the Majority Opinion, the exercise of the obligee’s right to partition of co-owned property cannot be allowed on the ground that, in a case where a court orders auction of co-owned property in spite of the principle of partition in kind in practice, for the preservation of monetary claims, a creditor with sufficient funds or a party economically connected with such creditor may acquire the whole co-owned property in the auction procedure, if it recognizes that the exercise of the right to partition of co-owned property is permissible.

However, such assertion is merely a concern over over over over one part of the country in which the auction procedure for partition of co-owned property is in progress. The circumstance that a creditor who exercises the right of subrogation may become a purchaser is not an element to consider when determining whether to allow exercise of the right of partition of co-owned property.

It is different from the perspective that the creditor can proceed with the auction procedure for co-owned real estate by permitting the exercise of the exercise of the right to claim partition of co-owned property for preserving a monetary claim against the creditor so that compulsory execution against the debtor's responsible property may be possible, and that the creditor may be the direct purchaser

In an auction procedure for partition of co-owned property, an opportunity to become the purchaser of the co-owned property, which is an auction property, is granted to anyone. The same applies to a co-owned property partition upon the co-owner’s request or a creditor’s subrogation. In an auction procedure, a person who seeks to acquire the co-owned property at a higher price is the purchaser, and even if having abundant capacity, a purchase report is filed at a price lower than that of other persons participating in the auction

On the other hand, an auction for partition of co-owned property is not appropriate for dividing the co-owned property in kind, and proceeds therefrom are sold, and proceeds therefrom are divided. Co-owners are not merely subject to auction, but subject to distribution of proceeds corresponding to their co-owned shares if auction is completed. If a person with considerable capacity purchases co-owned property at a higher price, this may be beneficial to the co-owners who receive the proceeds thereof. If the co-owned property is likely to be sold at a price lower than the actual value, or if co-owners desire to continue to hold the right to the co-owned property, co-owners may also compensate for their rights by participating in the auction procedure to purchase the jointly-owned property.

In determining whether to grant the exercise of the right to partition of co-owned property, it is not desirable to make a different conclusion depending on whether the creditor has financial ability or who purchases the co-owned property, and it is not reasonable to consider such circumstance as a ground for denying the exercise of the right to partition of co-owned property by the creditor.

D. The concurring opinion with the Majority argues that, if the partition of co-owned property is combined with the revocation of fraudulent act against the agreement on partition of inherited property, the inheritor may lose the entire inherited property.

However, as pointed out in the concurring opinion above, if a joint security against a general creditor has decreased as a result of the debtor having already been in excess of his/her obligation waivers his/her right to the inherited property while holding an agreement on the division of inherited property, then such agreement constitutes a fraudulent act against the creditor in principle (see Supreme Court Decision 2007Da29119, Jul. 26, 2007, etc.). Such agreement on the division of inherited property constitutes a fraudulent act whereby the insolvent debtor, who is the debtor, did not acquire the inherited property that can become his/her own responsible property according to his/her inherited property and did not take

Since a property which was revoked by a fraudulent act and restored to original state is a debtor's responsible property, it is a consistent logic and interpretation of the law that makes compulsory execution possible. Since a malicious inheritor need not protect, it cannot be deemed that the property is an inherited property. Whether the legal relationship causing the sharing was due to sale and purchase, whether it was due to inheritance, and whether it was due to the cancellation of a fraudulent act from the beginning, and at that time, whether it was permissible to exercise the creditor's right of subrogation is different. Whether there was such property at the time of the establishment of a claim does not necessarily mean whether there was such property or not.

E. In light of the specific circumstances of the instant case, allowing the Plaintiff to exercise the exercise of the right to partition co-owned property so that ordinary creditors can enforce compulsory execution against the obligor’s responsible property accords with the concept of fairness and justice.

In this case, even though Nonparty 1 was able to obtain the share of the apartment of this case, which is an inherited property, according to his/her inherited portion in excess of the debt, he/she agreed on the division of inherited property, and allowed the Defendant to inherit the apartment of this case independently. Nonparty 1’s co-ownership of this case was restored to Nonparty 1’s responsible property by filing a lawsuit seeking revocation against the Defendant on the ground that the agreement on the division of inherited property constitutes a fraudulent act by Nonparty 1’s creditors constituted the aforementioned agreement on the division of inherited property. In cases where the obligor’s responsible property, which was deviates from a fraudulent act, has to be able to enforce a compulsory execution against the recovered responsible property, i.e., the obligee should be able to protect the

F. As above, I express my concurrence with the Dissenting Opinion.

Justices Kwon Soon-il (Presiding Justice)