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(영문) 대전고등법원(청주) 2016.09.30 2015나11466
대여금
Text

1. Revocation of a judgment of the first instance;

2. The instant lawsuit shall be dismissed.

3. All costs of the lawsuit shall be borne by the Plaintiff.

Reasons

1. The court's explanation on this part of the basic facts is the same as the '1. Basic Facts' part of the reasoning of the judgment of the court of first instance. Thus, this part is cited in accordance with the main sentence of Article 420 of the Civil Procedure Act.

2. Determination on this safety defense

A. The plaintiff's assertion that the plaintiff has the plaintiff's claim against I in this case against I, and I holds a claim for return of unjust enrichment of KRW 300,015,00 in total against J, etc., and the J, etc. holds a claim for provisional seizure of KRW 3,322,350,554 in total against the defendant. Since I and J are insolvent, the plaintiff's claim for return of unjust enrichment against J, etc. in order to preserve the plaintiff's claim for provisional seizure of KRW 300,015,00 in succession to the defendant's claim for provisional seizure against J, etc.

In regard to this, the defendant asserts that ① there is no claim for return of unjust enrichment against IJ, etc., ② the lawsuit in this case is unlawful because I, J, etc. are not insolvent, and it does not meet the necessity of preservation, which is the requirement of creditor subrogation lawsuit.

B. Determination 1) In a case where a creditor’s right to a debtor who is to be preserved by subrogation is a monetary claim in the event that the creditor’s right to the debtor is a monetary claim in subrogation of the debtor, the creditor may exercise the creditor’s right to a third debtor on behalf of the debtor only when the debtor is insolvent (see, e.g., Supreme Court Decision 2008Da76556, Feb. 26, 2009). The need for preservation, which is the requirement for exercising the creditor’s subrogation right, should be determined at the time of the closing of argument in the fact-finding court, and the burden of proof is borne by the creditor who exercises the creditor’s subrogation right (see, e.g., Supreme Court Decision 75Da1086, Jul. 13, 1976). Furthermore, where such preservation is deemed unnecessary, the lawsuit is unlawful (see, e.g., Supreme Court Decision 2010Da39918, Aug. 3

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