[Judgment of the court below]

Korea Highway Corporation (Attorney Seo-sik et al., Counsel for defendant-appellee)

December 13, 2017

Daegu District Court Decision 2015Da16481 Decided December 9, 2016

1. The judgment of the first instance, including a claim that has been changed in exchange in this court, shall be amended as follows:

The instant lawsuit is dismissed.

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

The judgment of the court of first instance is revoked. On October 12, 2005, the defendant confirmed that the defendant's right to claim for payment of deposit money of KRW 20,129,400 deposited with the deposit officer of the Daegu District Court No. 8361 (hereinafter referred to as "right to claim payment of deposit money of this case") was in ○○○-ri [ Address 3 omitted in Busan Metropolitan City and Representative Nonparty 2] (the plaintiff changed the claim to exchange in the first instance) (the plaintiff changed the claim to exchange).

1. Determination as to the legitimacy of the instant lawsuit

(a) Grounds for claims;

The Plaintiff sought confirmation that the Defendant’s right to claim for the transfer registration of ownership based on the prescription period for the acquisition of ○○○○ constitutes ○○○○○○ by subrogationing the right to claim for the transfer registration of ownership based on the prescription period for the acquisition of ○○○○○.

B. Relevant legal principles

The obligee’s subrogation right is entitled to exercise the obligee’s right to preserve his claim only in a case where the obligee does not exercise the obligee’s right to the third obligor, and when the obligee has already exercised the obligee’s right to subrogation at the time of exercise of the obligee’s right of subrogation, the obligee is not entitled to exercise the obligee’s right to exercise the obligee’s right on behalf of the obligor (see Supreme Court Decision 92Da30016, Nov. 10, 1992).

C. Determination

According to the facts without dispute, Eul evidence No. 3 and the purport of the whole pleadings, ○○○ filed a lawsuit against the defendant claiming confirmation of the right to claim payment of deposit money of this case, which is the cause of the plaintiff's claim for confirmation of the right to claim payment of deposit money of this case, which is alleged as the subrogated claim ( Daegu District Court 2016Da133611), and it can be recognized that the judgment of dismissal was rendered on September 22, 2017. Accordingly, since the plaintiff had exercised a judicial right of subrogation at the time of exercising the subrogation right by the lawsuit of this case, the plaintiff's subrogation lawsuit of this case against the defendant who is the obligor of ○○○○○ is unlawful.

2. Conclusion

Therefore, the court of first instance decides to dismiss the plaintiff's claim of this case, which is changed to exchange in this court, as it is unlawful, and the judgment of the court of first instance is unfair with different conclusions, so it is so decided as per Disposition by the assent of all participating Justices.

Judges Kim Hyun-hwan (Presiding Judge)