[1] Whether a third party obligor in a creditor subrogation lawsuit may invoke the defense of the completion of extinctive prescription against the obligee by the obligor (negative)

[2] In a case where the grounds for termination of partnership relations and partnership relations are terminated and only the distribution of residual assets remains as a remaining remaining business, whether a claim for distribution of residual assets can be made without going through the liquidation procedures (affirmative)

[1] In a claim filed by a creditor against a third party by exercising a creditor's subrogation right, the third debtor cannot set up a defense against the debtor against the creditor, and in principle, the person who can invoke the extinctive prescription right when the extinctive prescription of the claim is completed is limited to the person who directly receives the benefit of prescription, and the third debtor in the creditor subrogation lawsuit cannot exercise it.

[2] In the partnership relationship, the partnership relationship is terminated by the occurrence of a cause prescribed by the partnership agreement, the agreement of all union members, the success or failure of the business which is the object of the partnership, the request for dissolution, etc., and in the case of the partnership relationship terminated, unless there is a separate agreement between the parties, as a common example, the remaining assets and the value of the remaining assets to be distributed to union members as a result of the liquidation procedure is finalized at the time of the completion of the liquidation procedure. Thus, in principle, it is not possible to claim a distribution of the remaining assets under the status that the liquidation procedure is not completed. However, if only the remaining assets remain as the remaining assets, each union member may immediately claim a distribution of the remaining assets for its members who hold the remaining assets in excess of

[1] Articles 162 and 404 of the Civil Act / [2] Articles 720 and 724 of the Civil Act

[1] Supreme Court Decision 92Da35899 delivered on November 10, 1992 (Gong1993Sang, 90), Supreme Court Decision 92Da25472 delivered on March 26, 1993 (Gong1993Sang, 1288), Supreme Court Decision 93Da59502 delivered on May 12, 1995 (Gong1995Sang, 2094), Supreme Court Decision 97Da5749 delivered on July 22, 1997 (Gong197Ha, 2641) / [2] Supreme Court Decision 90Da26300 delivered on February 222, 199 (Gong1991, 1065), Supreme Court Decision 29Da294539 delivered on March 29, 194 (Gong1994, 297Da394597 delivered on March 29, 1993)

Plaintiff

Defendant (Attorney Im Chang-soo et al., Counsel for defendant-appellant)

Daejeon High Court Decision 96Na660 delivered on June 27, 1997

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

The grounds of appeal are examined.

1. We examine the records in comparison with the fact-finding and judgment by the court below, and there is no error of law such as misconception of facts against the rules of evidence. The ground of appeal pointing this out cannot be accepted.

2. In a claim filed by a creditor against a third party by exercising a creditor's subrogation right, the third debtor cannot set up a defense against the debtor against the creditor, and in principle, the person who can invoke the statute of limitations when the statute of limitations has been completed is limited to the person who directly receives the benefit of prescription, and the third debtor of the creditor's subrogation lawsuit may not exercise it (see Supreme Court Decision 97Da5749 delivered on July 22, 1997).

Therefore, even if the extinctive prescription of the Plaintiff’s damage claim against Nonparty 1 has expired, the Defendant, the garnishee, cannot be invoked. Therefore, this part of the ground of appeal cannot be accepted.

3. In a partnership relationship, the partnership relationship is generally terminated by the occurrence of a cause prescribed by the partnership agreement, the agreement of all union members, the success or failure of a business which is the object of the partnership, and the request for dissolution (see Supreme Court Decision 95Da4957, May 30, 1997). In addition, in a case where partnership relationship is terminated, unless otherwise agreed by the parties, the remaining assets and the value of the remaining assets to be distributed to union members as a common example are finalized at the time of the completion of the liquidation procedure, and thus, in principle, a claim for distribution of the remaining assets cannot be made without the completion of the liquidation procedure. However, in a case where only the remaining assets remain as a remaining business of the partnership, each union member is entitled to immediately demand distribution of the remaining assets within the scope of his/her remaining assets distribution ratio (see Supreme Court Decision 94Da13749, Feb. 24, 1995).

In the same purport, the court below is just in holding that the plaintiff, a member of the union, can claim for the distribution of KRW 200,000,000,000 paid-in capital to the non-party 1 who has the claim for penalty against the defendant, and there is no violation of law by misunderstanding the legal principles on dissolution of the union and liquidation

4. The defendant's assertion that the non-party 2, who represented by the defendant, returned the above amount of KRW 97.8 million to the non-party 1 was not directly determined by the court below, but the defendant asserted that the above amount was returned as supporting the cancellation of agreement on December 23, 1992 of the development agreement of this case, i.e., the debtor's exercise of rights, and the court below ruled that the above non-party 1's claim for cancellation of agreement is not recognized for the above reasons as mentioned above. Thus, the above argument is dismissed. Further, considering the records, it is insufficient to find that the non-party 2 returned the above amount as part of the deposit on behalf of the defendant, except the evidence rejected by the court below, and therefore, it cannot be said that there was an error of law affecting the conclusion of the judgment even if there was a omission of judgment as above. Accordingly, the ground of appeal pointing this out

Therefore, the appeal shall be dismissed, and all costs of appeal shall be assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.

Justices Kim Jong-sik (Presiding Justice)