[1] The degree of assertion of the requisite fact to be based on the judgment

[2] The case holding that the party's assertion that there is a requirement fact in light of the party's argument

[3] The contents and limits of the court's exercise of the right to explanation

[4] In a creditor subrogation lawsuit, whether the court may order the third party obligor to perform the payment directly to the third party obligor (affirmative)

[1] Since an act of representation belongs to the facts that constitute the elements of a substantive law which generates the legal effect, the court may not admit it unless the parties have asserted in the pleading. If such assertion is not necessarily required to be explicitly, but can be seen as including such assertion in light of the purport of the parties' assertion, it can be based on the judgment.

[2] The case holding that a party's assertion of the requisite fact exists in light of the party's argument process

[3] The court's exercise of the right to ask for a Elucidation is to give an opportunity to point out and supplement any inconsistency in the parties' arguments or to urge the submission of evidence as to the facts of dispute, and to suggest the requirement of legal effect which the parties did not assert, or the independent method of attack and defense, and to make the same act goes beyond the limit of the exercise of the right to ask for a Elucidation, as it goes against the principle of pleading.

[4] In exercising a creditor's subrogation right, the creditor is not superior to the creditor's demand for direct payment to the third debtor and the effect of his demand for payment is attributed to the debtor. Thus, even if the creditor exercised the creditor's subrogation right and won the creditor's claim to the third debtor for the cancellation of the registration of preservation of ownership or the transfer of ownership in his name, the effect belongs to the debtor who is the original owner. Thus, the court ordered the creditor who exercises the creditor's subrogation right to perform the registration procedure of cancellation directly.

[1] Article 188 of the Civil Procedure Act/ [2] Article 188 of the Civil Procedure Act/ [3] Article 126 of the Civil Procedure Act/ [4] Article 404 of the Civil Act

[1] [2] Supreme Court Decision 87Da982 delivered on September 8, 1989 (Gong1987, 1565) (Gong1990, 1563) / [3] Supreme Court Decision 89Da7563 delivered on April 27, 1990 (Gong1990, 1155), Supreme Court Decision 92Da3892 delivered on May 22, 1992 (Gong192, 1978), Supreme Court Decision 93Da4629 delivered on November 18, 194 (Gong195, 474) / [3] Supreme Court Decision 92Da66465 delivered on April 66, 196, Supreme Court Decision 92Da6641675 delivered on April 26, 197 (Gong195, 474) / [4] Supreme Court Decision 97Da66641675 delivered on April 1965, 1967

2. The term “joint stock farm association” means a joint stock farm association.

Defendant 1 and nine others (Attorney Yoon Young-young, Counsel for the defendant-appellant)

Jeju District Court Decision 95Na115 delivered on May 25, 1995

Supreme Court Decision 93Da30334 Delivered on December 22, 1994

All appeals are dismissed. The costs of appeal are assessed against the Defendants.

The grounds of appeal are examined.

1. On the first ground for appeal

Examining the reasoning of the judgment below in light of the records, the court below is justified in finding that the plaintiff union purchased the land in this case from the purchaser of the land in this case, and there is no violation of the rules of evidence or incomplete hearing as otherwise alleged in the ground of appeal.

However, in recognizing the fact that the deceased non-party 1 purchased part of the land of this case, the court below recognized that it was hard to understand the purport of the purchase from the deceased non-party 2, who representing the deceased non-party 1's heir, but it is reasonable to deem that it was a fact that other inheritors except himself sold it as an agent in the capacity of an agent. Since the fact that other inheritors entered into a contract as to their shares constitutes an element of legal effect under the substantive law, it is not possible for the court to recognize it unless the parties asserted in the pleading. However, such argument does not necessarily have to be explicitly, but it can be considered as a basis of the trial as a matter of course if it can be viewed that this argument is included in the arguments of the parties in light of the purport of the plaintiff's assertion. The plaintiff asserted that the part of the land of this case purchased by the deceased non-party 1 from the deceased non-party 2, his heir, and that the plaintiff purchased it from the deceased non-party 2, the deceased non-party 2, the plaintiff's heir's counter-party 2.

In addition, the first ground of appeal argues that even if the registration of preservation of ownership on the land of this case was made by a false letter of guarantee and a false letter of confirmation, the land of this case was purchased and managed on the part of the defendant, and therefore, the court below did not render a decision as to it despite the fact that it conforms to the substantive relationship. However, even if the defendants' assertion itself was made by a false letter of guarantee and a false letter of confirmation, it cannot be said that the defendants' assertion conforms to the substantive relationship, not because of the reason as alleged above, but because there is no credibility of evidence that conforms to the argument that the plaintiff purchased in the association of this case, and it is not clear that the purport of the assertion is not clear, and according to the reasoning of the judgment of the court below, Defendant 1 recognizes that there was no fact that the real right holder has purchased the land of this case from the real right holder. Thus, there is no error in the judgment of the court below as to this point.

Thus, the court below's finding that the plaintiff union lawfully purchased the land of this case from the deceased non-party 3 and the deceased non-party 1's successors, and accepting the plaintiff's claim seeking cancellation of the registration in the name of the defendants in successive subrogation is legitimate, and there is no error of law by misunderstanding the legal principles of subrogation of the creditor, or by failing

The grounds of appeal on this point cannot be accepted.

2. On the second ground for appeal

Examining the reasoning of the judgment below in light of the records, the court below was just in finding facts as stated in its judgment after compiling the evidence presented in its judgment, and judged that the registration of preservation of ownership under the Act on Special Measures for the Transfer, etc. of Forest and Forest Ownership (Act No. 2111) was based on a false letter of guarantee and confirmation, and there is no error in the rules of evidence against the rules of evidence as alleged in the ground of appeal. The ground of appeal

3. On the third ground for appeal

The court’s exercise of the right to make a statement of inconsistency with the allegations of the parties or when there is incomplete or unclear points, it provides an opportunity to correct and supplement such points when they are pointed out, and urge the submission of evidence as to the dispute. The solicitation of submission by suggesting the requirements of legal effect or independent means of attack and defense, which have not been asserted by the parties, is in violation of the principle of pleading, and it goes beyond the limit of the exercise of the right to make a statement (see, e.g., Supreme Court Decisions 86Meu2521, Jul. 7, 1987; 89Meu7563, Apr. 27, 1990). In light of such legal principles, the court below’s failure to explain whether the defendant raised a defense for the acquisition of prescription, which was not asserted by the defendant, constitutes an unlawful exercise of the right to make a statement of defense, or thereby making an incomplete hearing. The grounds for appeal pointing this out cannot be accepted.

4. On the fourth ground for appeal

In exercising a creditor's right of subrogation, the creditor is not superior to the creditor's demand for direct payment to the third debtor, and the effect of the demand is attributed to the debtor. Thus, even if the creditor has exercised the creditor's right of subrogation and won it by requesting the third debtor to directly perform the procedure of registration of preservation of ownership in his name or registration of transfer of ownership, the effect is attributable to the Republic of Korea, which is the original owner. Thus, the court below's order the plaintiff, a creditor who exercises the creditor's right of subrogation, to perform the procedure of registration of cancellation directly, cannot be deemed to be in violation of law (see, e.g., Supreme Court Decisions 66Da254, 255, Apr. 6, 196; 94Da58148, Apr. 14, 1995). In light of these legal principles, even if the court below ordered the third debtor to directly perform the procedure of registration of cancellation of the creditor's right of subrogation and registration of cancellation of ownership transfer, it cannot be accepted.

5. Therefore, all appeals are dismissed, and the costs of appeal are assessed against the defendants who are appellant. It is so decided as per Disposition by the assent of all participating Justices.

Justices Park Jong-chul (Presiding Justice)