[1] Whether creditor's right of revocation is subject to creditor's subrogation right (affirmative)

[2] Where a creditor acts in subrogation of a debtor's right of revocation, whether the period for filing a lawsuit should be determined on the basis of the debtor (affirmative)

[1] The creditor's right of revocation may also be exercised on behalf of the debtor.

[2] The obligee's subrogation right under Article 404 of the Civil Code is the obligee's right to exercise the obligor's right in his own name in order to preserve his claim. Thus, in case where the obligee exercises the obligee's subrogation right, the period for filing a lawsuit should be determined on the basis of the obligor, who is the obligee of the right that is the object of subrogation. Therefore, even if one year has passed since the obligee, who exercises the obligee's subrogation right, became aware of the cause for revocation, one year after the obligor became aware of the cause for revocation, and five years from the date of the juristic act, the obligee may file a lawsuit for

[1] Articles 404(1) and 406 of the Civil Act / [2] Articles 404(1) and 406(2) of the Civil Act

Korea Exchange Bank (Law Firm Han & Han, Attorneys Sung-min et al., Counsel for the defendant-appellant)

Defendant (Law Firm Kang, Attorney Lee Yong-soo, Counsel for defendant-appellant)

Seoul High Court Decision 99Na24524 delivered on November 22, 2000

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

We examine the grounds of appeal.

1. On the first ground for appeal

The obligee's right of revocation is also possible for the obligee to exercise the obligee's right of subrogation on behalf of the obligor, and since the obligee's right of subrogation under Article 404 of the Civil Code is the right of the obligor to exercise the obligee's right in his name in order to preserve his claim, in case the obligee exercises the obligee's right of revocation on behalf of the obligor, the period for filing the suit should be determined on the basis of the obligor who is the obligee of the right that is the object of subrogation, and therefore, if the obligor becomes aware of the cause of revocation and is within 5 years from the

Therefore, if one year has passed since the plaintiff, a creditor acting in subrogation of the creditor's right of revocation of the non-party Young River Co., Ltd. (hereinafter "non-party company"), became aware of the cause of revocation, the argument in the grounds of appeal that the non-party company, the debtor company, became aware of the cause of revocation, and five years have not passed since the legal act was conducted, and it is possible for the non-party company to bring a lawsuit for revocation on its own by proxy of the non-party company, the plaintiff, the creditor company, cannot bring

The judgment of the court below to the same purport is just and there is no error in the misapprehension of legal principles as to the period for filing a lawsuit for cancellation by creditor's subrogation right, as alleged in the grounds of appeal.

The ground of appeal on this part is without merit.

2. On the second ground for appeal

A. According to the reasoning of the judgment below, in determining whether the plaintiff, who is the creditor of the non-party company, can exercise the right of revocation against the non-party 1, the court below acknowledged that the non-party company had at least 214,473,254 won of steel price claim against the non-party 1, on October 31, 1997, based on the adopted evidence.

B. Comprehensively taking account of the entries in Gap evidence No. 11-4 (Tax Invoice) which the defendant acknowledged the authenticity, and the whole purport of the testimony and arguments by non-party 2 as witnesses of the original trial, the fact that the non-party company held the claim for steel price of KRW 50,595,254 against non-party 1 as of October 31, 1997 is recognized. However, as of that day, the non-party company's claim for steel price of KRW 163,878,00 against non-party 1 was added to the claim for steel price of KRW 163,878,00 against the non-party 1, there is no evidence to acknowledge the authenticity, and there is insufficient evidence to acknowledge it as the testimony by non-party 3 and non-party 4 of the original trial.

C. Nevertheless, the court below found on October 31, 1997 that the non-party company had a claim of at least 214,473,254 won against non-party 1 in excess of the steel price claim of at least 50,595,254 won against non-party 1 as of October 31, 1997, it is against the rules of evidence as to the portion exceeding 50,595,254 won. However, the non-party company may exercise the right to revoke the claim of at least 50,595,254 won against the non-party 1 as the right to preserve the steel price of KRW 50,59,254 against the non-party 1 as the right to the claim against the non-party 1, and therefore, the court below's error of fact

Ultimately, this part of the grounds of appeal is without merit.

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

Justices Lee Jin-hun (Presiding Justice)