Seoul Southern District Court 2012Kadan206242 ( October 05, 2012)

Where a creditor's subrogation lawsuit is not recognized as a right to the debtor, the creditor subrogation lawsuit is illegal.

In a creditor subrogation lawsuit, in case where the right of the creditor to be compensated by subrogation is not recognized as to the debtor, the creditor himself/herself becomes the plaintiff and is no longer entitled to exercise the right of the debtor to the third debtor, so the subrogation lawsuit shall be dismissed in an unlawful manner.

2012Na51283 Registration of cancellation of ownership

ThisAAAA

MaximumO 4 others

Seoul Southern District Court Decision 2012Da206242 Decided October 5, 2012

May 16, 2013

July 18, 2013

1. The plaintiff's appeal is dismissed.

2. The court shall dismiss the plaintiff's conjunctive action against this BB, and the UCC.

3. The costs of the lawsuit after the appeal shall be borne by the plaintiff.

The judgment of the first instance court shall be revoked. The judgment of the court of first instance shall be revoked. The defendant UCC, at any time when the District Court received on October 14, 2009, No. 10479, and the defendant BB made each co-ownership transfer registration of the defendant Choi OO on October 14, 2009, received on October 14, 2009 at least 10480 of the same registry office, and the defendant BB made each of the co-ownership transfer registration of the defendant ChoiO on October 14, 209 at first time on the ground of the cancellation of the above co-ownership transfer registration by mistake. (d) The defendant Republic of Korea and the Gangwon-do Incheon-gun expressed the intention of the deceased on the registration of cancellation of each of the above co-ownership transfer, and the defendant ChoiO expressed the plaintiff's intention to participate in the registration of cancellation, and the defendant ChoiO made the preliminary claim for the transfer registration of shares in the name of the plaintiff on the 15th 2000 O.25.

1. Basic facts

A. The land before the division of this case was owned by Defendant BB as 6307/1163 shares, Defendant BB as 4298/1163 shares, and Defendant UCC as 558/1163 shares.

B. The defendant BB made 30 m20 m20 m25 m2645/1163 m2 and 2642 m20 m20 m20 m25 m20 m20 m28 m200 m20 m205 m28 m200 m200 m268 m28 m205 m200 m28 m200 m28 m206 m28 m20 m205 m200 m20 m206 m20 m25 m200 m20 m28 m25 m20 m20 m20 m293 m20 m20 m20 m263 m20 m20 m20

D. After October 6, 2009, the land in this case was caused by partition of co-owned property on October 6, 2009, and ① among them, the land in this case was owned by Defendant UCC under No. 10479 on October 14, 2009 as to the 349/11163 shares of Defendant LO, and by Defendant BB under No. 10480 on October 14, 2009 as to the 3949/1163 shares of Defendant LO, the ownership transfer registration was completed on October 14, 2009 with respect to the 3949/11163 shares of Defendant BB and UCC, and the separate land in this case was owned by Defendant BB and UOOO, and the ownership transfer registration was completed on October 14, 2009 with respect to the 686/1163 shares of Defendant B and UOOOO.

E. On October 15, 2009, Defendant LO sold the instant case’s land to the Plaintiff at KRW 000, and completed the registration of ownership transfer to the Plaintiff on October 23, 2009.

F. However, due to the execution of the principal registration based on the registration of the instant items 1 and 2, the ownership transfer registration was completed with respect to the instant land and separate land, and with respect to each of 2645/1163 shares on February 8, 2010, No. 939 received on February 8, 2010, to Chuncheon District Court, No. 939, and with respect to each of 1653/1163 shares on February 8, 2010, the ownership transfer registration was completed with respect to QO on February 8, 2010.

G. On the instant separate land based on the above provisional registration ex officio, Chuncheon District Court’s deemed that Defendant ○O registered the instant separate land as the shares of 2567/11163 (excluding the shares in Nos. 1 and 2 of the instant case) in 2567/1163 (excluding the shares in the instant registration), and accordingly, the Plaintiff owned only 6865/1163 shares out of the instant separate land ( Defendant ○ OO shares 4298 + 2567).

H. On February 22, 2010, Defendant Korea seized Defendant BB’s 6307/1163 shares among the instant land, and 3949/1163 shares, and Defendant Gangwon-do’s Human Resources Group seized Defendant BB’s 3949/1163 shares among the instant land on June 25, 2010.

[Ground of recognition] There is no dispute between the plaintiff and defendant hO, and UCC, and between the plaintiff and the remaining defendant frame, it can be recognized that the whole purport of the theory is changed from each description of Gap evidence 1 to 6 (including paper numbers).

2. The plaintiff's main and main claims

A. The registration of partition of co-owned property as to the land in this case between Defendant ChoiO, BB, and UO was null and void due to the principal registration of this case, and the registration of this case Nos. 1 and 2, and the principal registration of this case becomes null and void, and the shares of Defendant ChoiO have been reduced from the land in this case. As such, the shares of the above defendant were returned from the land in this case. Defendant BB, and UCC are liable to implement the cancellation registration procedure for each co-owned property transfer as to the land in this case made on October 14, 2009 for the co-owned property in this case due to the partition of co-owned property, and the provisional registration No. 1 and 2.

B. Preliminaryly, Defendant LOO attempted to divide and sell only his share in the land before the instant partition, but the co-ownership of the land was lower than the sale of individual land. The co-ownership of Defendant BB became aware that several provisional registrations and provisional seizures were not easy to establish, and if Defendant BB entered into a co-ownership agreement dividing the land before the instant partition into 4,298 square meters, one’s own share, the provisional registration of Defendant BB was naturally extinguished, and Defendant BB entered into a co-owned property partition agreement with Defendant BB and UCC on June 11, 2009, and Defendant BB, and CB, and CO were aware of these circumstances several times from Defendant PO at the time. This constitutes an error in the main part of the contract, and the Plaintiff purchased Defendant PO with respect to the legal relationship of the land in this case from Defendant POO, and Defendant POB’s duty to cancel the co-owned property partition agreement with the Defendants on April 17, 2013.

C. The Defendant, the Republic of Korea, and the Gangwon-do human rights group have the obligation to accept the cancellation of the registration of seizure of the instant land since the attachment registration was made for the instant land after the provisional registration, and as above, the aforementioned obligation is to accept the cancellation of the registration of transfer of

D. The Plaintiff is obligated to transfer the above Defendant’s share to the Plaintiff, which remains in the instant land, on October 15, 2009, since the Plaintiff had the right to claim for ownership transfer registration pursuant to the sales contract executed on October 15, 209 on the instant separate land.

E. The Plaintiff: (a) by exercising the right to claim the registration of transfer of shares of Defendant MaO located in the instant land as the preserved right; and (b) by exercising the right to claim the registration of transfer of shares of Defendant MaO as the preserved right, the Plaintiff filed a claim against the remaining Defendants for performance of the registration of partition of co-owned property as to the instant land on

3. Determination as to the existence of the Plaintiff’s preserved claim

A. In a creditor subrogation lawsuit, where the right of the creditor to be preserved by subrogation against the debtor is not acknowledged, the creditor becomes the plaintiff himself and has no standing to exercise the debtor's right against the third debtor, so the subrogation lawsuit is dismissed by illegality (see Supreme Court Decision 94Da1439, Jun. 24, 1994). Thus, in order to examine the existence of the plaintiff's right to claim for the registration of ownership transfer against the defendant MaO as to the land in this case.

B. Whether the plaintiff's right to claim ownership transfer registration against the defendant BaO exists

1) On October 15, 2009, the fact that the Plaintiff purchased the instant separate land from Defendant BaO and completed the registration of ownership transfer for the entire land at KRW 000,000, is recognized as above. Therefore, even if Defendant BaO had the ownership right to the instant land, the Plaintiff’s claim seeking the registration of ownership transfer for the instant separate land on the grounds of a sales contract for a separate land is without merit.

2) In addition, registration of subdivision in the procedure of registration is transferred to all the rights rights existing in the register before the subdivision. Since registration of subdivision in the process of registration is transferred to all the rights rights existing in the register before the subdivision, while registration of subdivision in the part of co-owned land is divided into a single ownership after provisional registration of preservation of right to claim ownership transfer is completed, and provisional registration is transferred to the part of co-owned land as it is divided into a separate ownership. In this case, registration of ownership transfer made before the partition of co-owned land after provisional registration of the land owned by another co-owner can not be compatible with the principal registration within the scope of shares registered. Thus, registration of subdivision in the first place after the provisional registration of the land owned by the other co-owner is revoked ex officio pursuant to Articles 175 through 177, and Article 55 subparagraph 2 of the Registration of Real Estate Act (amended by Act No. 10580, Apr. 12, 201). Thus, the plaintiff's request for partition of co-owned property under Article 175 through Article 1778-47 of the above legal reasoning.

3) On the other hand, when there is an error in the important part of the contents of a legal act, the declaration of intention may be cancelled, and when there is an error in the motive for the declaration of intention between the parties, it may be cancelled by mistake in the declaration of intention only when the parties have made the motive as the content of the declaration of intent. As alleged by the plaintiff, even if the defendant lastO divided the land before the division into one's shares, it is insufficient to recognize that the provisional registration, etc. of this case BB was naturally extinguished, and that the entry of Gap 6 and evidence No. 7 alone made the motive as the content of the above co-owned property partition agreement at the time of the above co-owned property partition agreement, there is no other evidence, and therefore, the plaintiff's conjunctive claim is without reason to further examine (as stated in evidence No. 5, the defendant lastO sold the land of this case to the plaintiff on October 15, 2009, and the seller was responsible for the provisional registration, and the provisional registration is not known to be extinguished by the agreement to cancel it by the end of October 2009).

C. Sub-decision

As long as the plaintiff's right to claim for ownership transfer registration against the defendant ChoiO is not recognized, the plaintiff's primary and conjunctive claims against the defendant Lee BB, the defendant's primary and conjunctive claims against the UCC, and the Gangwon-do human rights group are illegal because all of the claims are not standing, and the claims against the defendant ChoiO are without merit.

4. Conclusion

Then, the plaintiff's primary claims against the defendant BB, the UCC, and the UCC, all of the claims against the defendant, the Republic of Korea, and the Gangwon-do human rights group shall be dismissed, and the claims against the defendant MaximumO shall be dismissed, and the judgment of the court of first instance shall be justified, and the plaintiff's appeal shall be dismissed as it is without merit, and the preliminary claims against the defendant BB, and the UCC, added in the trial, shall be dismissed, and it is so decided as per Disposition.