2016Da225094 Registration of transfer of ownership

A

1. C.

2. D;

3. E.

Seoul Central District Court Decision 2015Na47104 Decided April 29, 2016

August 30, 2016

The judgment below is reversed, and the case is remanded to the Seoul Central District Court.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. The creditor's subrogation right under Article 404 of the Civil Act refers to the right of the debtor to exercise the right on behalf of the third party when it is necessary for the creditor to preserve his claim against the debtor. In this case, if it is recognized that the preservation of the preserved claim is necessary and the due date has arrived, it does not interfere with the exercise of the right of subrogation on behalf of the debtor regardless of the cause of the claim, and it does not require that the claim against the third party can be set up against the debtor. In a case where the creditor's subrogation right is exercised in court, the plaintiff, the creditor, even if he exercises the right of subrogation, must prove the existence of the claim, necessity of preservation, arrival of the due date, etc., and it is not necessary to prove the fact that the cause of the claim or the fact that the claim is a claim that can be set up against the defendant who is the third party debtor. Accordingly, if the creditor has won a lawsuit claiming the performance of the right on behalf of the debtor, then the third debtor cannot dispute the existence of the claim (see, e.g., Supreme Court Decision 2003Da1505.

2. The instant lawsuit: (a) purchased 1/2 shares of the instant real estate from K, the former owner of the instant real estate as indicated by the Plaintiff, and (b) completed the title transfer registration under the name of the deceased F, and (c) completed the title transfer registration under the name of the deceased F; (b) the instant contract between the Plaintiff and K is valid; and (c) the ownership transfer registration under the name of the deceased F is null and void by the Act on the Registration of Real Estate under Actual Titleholder’s Name; (b) the Plaintiff, on behalf of K, exercised the right to claim the cancellation of the ownership transfer registration against the Defendants, a part of the deceased F’s heir. Meanwhile, according to the records, the Plaintiff filed a lawsuit against K for demanding the performance of the ownership transfer registration procedure based on the ownership transfer registration agreement on July 18, 202 with respect to the instant real estate, and the judgment was rendered without a pleading on December 24, 2014, and became final and conclusive at that time.

Therefore, the existence of the right to claim the registration of ownership transfer against K, that is, the existence of the right to claim the registration of ownership transfer, has been proved, and the Defendants cannot contest this. Therefore, the lower court should have deliberated and judged whether K has the right to claim the registration of cancellation against the Defendants, as alleged by the Plaintiff.

Nevertheless, the court below held that the lawsuit of this case is unlawful because the plaintiff's right to claim for ownership transfer registration against K is not recognized. In so doing, the court below erred by misapprehending the legal principles as to the existence of a preserved claim in a creditor subrogation lawsuit. The ground of appeal assigning this error is with merit.

3. Therefore, without further proceeding to decide on the remaining grounds of appeal, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

The presiding judge shall keep the record of the Justice

Justices Park Byung-hee

Chief Justice Park Jong-young

Justices Kim Jae-han