A. Whether a joint and several liability jointly and severally liable may also be exercised against a joint and several surety who jointly and severally liable for another joint and several liability jointly and severally liable (negative)

(b) Where there is a benefit in a lawsuit to bring an action for a separate award, even though the obligee has already received the name of debt pursuant to a final and conclusive judgment with respect to a claim to be transferred to the person performing the obligation by subrogation;

A. The other party to the exercise of the right to indemnity under Article 425(1) of the Civil Act, which provides for the right to indemnity, is limited to other joint and several liability jointly and severally liable, and the other joint and several liability jointly and severally liable who jointly and severally liable to the creditor is not liable for the repayment of the obligation to the creditor jointly and severally liable to the creditor, and the joint and several liability who jointly and severally liable to the creditor is not liable for the repayment of the obligation to the creditor jointly and severally liable to the creditor.

B. Even where a creditor has already received the name of debt owed by a final and conclusive judgment with respect to a claim to be transferred to the person performing the obligation, if the right to be transferred from the creditor to the person performing the obligation does not need to be subject to the obligor's share as in the case of a right against one debtor, or if it is not necessary to separate the obligor's share, the right may be exercised by being directly granted the succeeding execution clause, and thus, there may be no benefit in filing a lawsuit for a claim for indemnity. However, in a case where there are separate shares of each debtor entitled to exercise the right to demand indemnity and each debtor's share is not determined in the final and conclusive judgment, even if the execution clause is granted by a final and conclusive judgment, it is impossible to execute the part to be claimed. Therefore, there is benefit in filing a lawsuit for a separate claim for indemnity in order to determine the scope of the claim

(b)Article 425(1) and Article 760(b) of the Civil Code; Article 481 of the Civil Procedure Act; Article 226 of the Civil Procedure Act;

Attorney Park Jae-il, Counsel for the defendant-appellant

Attorney Lee Jae-hwan, Counsel for the defendant-appellant

Seoul High Court Decision 90Na38711 delivered on November 30, 1990

The judgment below is reversed and the case is remanded to Seoul High Court.

The defendant's attorney's grounds of appeal are examined.

1. The liability for damages caused by several joint and several liability or the exercise of the right to indemnity by nature is applied mutatis mutandis to the joint and several liability, but according to Article 425(1) of the Civil Act regarding the right to indemnity, when one of the joint and several liability is repaid or otherwise jointly discharged at his own expense, the other party to the exercise of the right to indemnity under this provision is entitled to exercise the right to indemnity against the other joint and several liability, but the other party to the joint and several liability, who jointly and severally liable to the other joint and several liability, is limited to the other joint and several liability, and the joint and several liability holder, who jointly and severally liable to the other joint and several liability and the obligee, is not liable for the portion of the joint and several liability, even if he/she jointly and severally liable

In the above purport, the court below held that the defendant's joint and several liability for the damages of the non-party 1 to the non-party 2 and the non-party 2 filed a lawsuit claiming compensation against the plaintiff, the defendant, and the non-party 1 as to the above non-party 2's medical expense damages amounting to 18,824,576 won and damages compensation damages, even though the plaintiff and the non-party 1 were sentenced to the above non-party 2 jointly and severally with the above non-party 1 and the defendant decided to pay the above amount to the above non-party 2, and even if the judgment became final and conclusive, the defendant's obligation does not change in the nature of the defendant's guarantee obligation, and thus, the defendant is exempted from his guarantee liability against the above non-party 2 as the creditor's act of repayment, and therefore, the plaintiff is not entitled to obtain the right to direct indemnity against the defendant. In so doing, there is no error of law by

The issue is groundless.

2. According to the reasoning of the judgment below, the court below determined that even if the plaintiff could exercise his right against the defendant by subrogation based on the right of reimbursement acquired against the above non-party 1, the obligee's right in subrogation as the obligee is transferred to the obligee. In this case, as seen above, the plaintiff in this case constitutes a specific successor after the closing of argument in the final judgment, and thus there is no benefit in legal action against the defendant separately.

However, even in cases where a creditor has already received the title of debt from a creditor with respect to a claim to be transferred to a creditor by subrogation, if the right to be transferred from a creditor to a creditor does not need to be subject to the obligor's share as in the case of a right against a debtor, etc., or otherwise there is no benefit in filing a lawsuit for the claim for the amount of indemnity, since the right to be transferred to a creditor by subrogation does not need to be subject to the obligor's share or otherwise, it may be exercised by being granted an execution clause, and thus, there is no benefit in filing a lawsuit for the claim for indemnity. However, in this case, in this case, the plaintiff can only claim for the portion of the above non-party 1 out of the title of debt due to the final judgment, which is, that is, the plaintiff's share that the plaintiff can claim in the final judgment, and since the plaintiff is not obliged to confirm the scope of the claim for indemnity such as the share that the plaintiff can actually claim, there is no benefit in filing a lawsuit.

Nevertheless, the court below held that the above non-party 2, a creditor, had the title of debt against the defendant, a joint and several surety of the above non-party 1, a joint and several surety of the above non-party 1, who is already jointly and severally liable different by the final and conclusive judgment, and that the plaintiff does not have any interest in the lawsuit against the defendant for the claim of this case solely on the ground that the plaintiff is a specific successor after the closing of argument in the final and conclusive judgment, shall be erroneous in the misapprehension of legal principles as to the person who performed the debt and the specific successor after the closing of argument in the final and conclusive judgment, and shall have affected the conclusion of

3. Therefore, the judgment of the court below is reversed and the case is remanded to the court below. It is so decided as per Disposition by the assent of all participating Justices.

Justices Choi Jae-ho (Presiding Justice)