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1. The instant lawsuit shall be dismissed.
2. The costs of lawsuit shall be borne by the Plaintiff.
Reasons
1. The plaintiff asserted that the plaintiff leased the first floor and the second floor of the building in Ulsan-gu, Ulsan-gu, Seoul-gu, and the defendant leased the second floor of the above building. The defendant occupied the second floor of the above building without permission by establishing a store on the size of 4.75 square meters among the above land corresponding to the common areas of the above building: (1), (2), (3), (4), (5), (6), and (1) the part (a) connected each point in sequence to C's common areas; (2) the plaintiff, in subrogation of the right to demand a removal of interference based on the ownership of C, seeks removal of the above part (a) and delivery of the above land around the defendant, and if it is difficult to enforce the removal of interference due to the existence of the road in the above part (a) the part (a) above, as preliminary, the indication of the drawings in the attached Form (b), (2), (5), (6) the removal of the part (b) and delivery
2. Determination
A. Although the Plaintiff made the primary and conjunctive claim to the Defendant as above, all of the grounds for the claim are the exercise of the Plaintiff’s right to the exclusion of disturbance by C, which is the owner of the above building, and the lawsuit of this case constitutes a creditor subrogation lawsuit. However, in a creditor subrogation lawsuit, in case where the creditor’s right to the debtor is not acknowledged in the creditor subrogation lawsuit, the creditor himself becomes the plaintiff and the debtor’s right to the third debtor cannot be exercised against the third debtor, and such subrogation lawsuit shall be dismissed as illegal.
(See Supreme Court Decision 94Da14339 delivered on June 24, 1994). B.
In order to be lawful in the instant lawsuit, which is a creditor subrogation suit, as to whether the instant lawsuit was lawful, the Plaintiff should be acknowledged as the right to be preserved, and the Plaintiff had any claim against C. In the pleading of the instant case, the Plaintiff did not have any special evidence of assertion as to the existence of the claim against C.