1. Revocation of the first instance judgment.

2. The instant lawsuit shall be dismissed.

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

1. Determination on this safety defense

(a) Where the creditor's right to the debtor, which is to be preserved by subrogation, is a monetary claim, the creditor may exercise the debtor's right to the third debtor on behalf of the debtor only when the debtor is insolvent;

(see, e.g., Supreme Court Decision 93Da28867, Oct. 8, 1993). Moreover, the necessity of preservation, which is a requirement for the exercise of creditor’s subrogation right, should be determined at the time of closing argument in the fact-finding court, and the burden of proof is borne by the creditor who exercises creditor’s subrogation right

(see, e.g., Supreme Court Decisions 75Da1086, Jul. 13, 1976; 96Da39301, Jul. 25, 1997). Furthermore, where the need for such preservation is not recognized, the lawsuit is illegal (see, e.g., Supreme Court Decision 2010Da39918, Aug. 30, 2012).

In light of the above legal principles, since it is apparent that the Plaintiff’s credit against the obligor C, who is the Plaintiff’s preserved claim, is monetary claims, the Plaintiff may exercise his right against the Defendant, the third obligor, who is insolvent. The burden of proof of insolvency is against the Plaintiff, the Plaintiff.

C. The Plaintiff stated at the first hearing date of pleading in this court that the obligor C’s active assets increase due to inheritance, and that there is insufficient evidence to prove the requirements of insolvency. The evidence submitted by the Plaintiff alone is insufficient to recognize C as the status of insolvency until the closing of argument in this court, and there is no other evidence to acknowledge this otherwise.

Ultimately, as long as the insolvency of C, which is the debtor, is not recognized, the instant lawsuit is unlawful without having to further examine the remainder.

2. If so, the lawsuit of this case shall be dismissed as unlawful.

The judgment of the court of first instance is unfair in conclusion, and thus, the judgment of the court of first instance is revoked and this case.