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1. The plaintiff's lawsuit against the defendant C shall be dismissed.
2. Defendant B: (a) KRW 379,000,000 on the Plaintiff and its related thereto.
Reasons
1. As to the judgment on the defense prior to the merits, the Plaintiff’s claim for the return of unjust enrichment of KRW 379,00,000 against Defendant B as the preserved claim, in subrogation of Defendant B, and sought cancellation of the ownership transfer registration in the name of Defendant C as to the real estate listed in the separate sheet (hereinafter “instant real estate”) against Defendant C, on the ground that Defendant C did not prove the debtor’s insolvency, and thus, the Plaintiff’s lawsuit against Defendant C is unlawful.
In case where the creditor's right to the debtor, which is to be preserved by subrogation, is a monetary claim by the creditor's right to the debtor in subrogation of the debtor, the creditor may exercise the debtor's right to the third debtor in subrogation of the debtor only when the debtor is insolvent.
(See Supreme Court Decision 2008Da76556 Decided February 26, 2009). However, it is insufficient to acknowledge that Defendant B, the debtor of the instant subrogation, is insolvent as of the date of the closing of argument in the instant case, solely on the basis of each inquiry into the inside market, Daegu Bank, Korea C&T Bank, Korea Standards-based Bank, NFFF, NFF, Han Bank, Korea Exchange Bank, Korea Exchange Bank, Enterprise Bank, Export Bank, New Bank, Korea Bank, Korea Bank, National Bank, and Korea Postal Information Center, and there is no other evidence to prove otherwise.
Rather, according to the evidence Nos. 11-1 through 5, Defendant B’s financial assets worth KRW 374,836,748 as of July 15, 2015 are recognized. Therefore, it is difficult to readily conclude that Defendant B’s financial assets do not amount to KRW 379,00,000,000 in the amount of preserved claims asserted by the Plaintiff.
Therefore, the plaintiff's lawsuit against the defendant C is unlawful because it does not meet the requirements of lawsuit.
2. Determination as to the claim against the defendant B
A. Determination on the cause of the claim 1 is based on the so-called contract title trust between the title truster and the title trustee.