[1] Requirements for exercising creditor's subrogation right, and in a case where a creditor has been rendered a final and conclusive judgment in favor of a debtor in a lawsuit filed against a debtor, and a garnishee files a lawsuit for subrogation against the third debtor by making a claim based on the final and conclusive judgment as a preserved claim, whether the third debtor may contest the existence of such claim (negative)

[2] The case holding that in case where a joint purchaser of real estate files a lawsuit in favor of the debtor against the third debtor claiming the transfer registration of ownership against the third debtor based on the right to claim the transfer registration of ownership against the debtor as preserved bonds, the above creditor can exercise the debtor's right to claim the transfer registration of ownership against the third debtor only within the extent of his/her share of purchase, and there is no need to preserve the debtor as to the portion exceeding his/her share of purchase

[1] Article 404 of the Civil Code / [2] Article 404 of the Civil Code

[1] Supreme Court Decision 98Da18155 delivered on June 9, 2000 (Gong2000Ha, 1591) Supreme Court Decision 2003Da1250 Delivered on April 11, 2003 (Gong2003Sang, 1171) Supreme Court Decision 2006Da82700 delivered on May 10, 2007 (Gong2007Sang, 857)

Plaintiff

Defendant 1 and one other (Law Firm Inology, Attorneys Gyeong-hee et al., Counsel for the defendant-appellant)

Seoul High Court Decision 2009Na101239 decided May 19, 2010

Of the lower judgment, the part of the lower judgment ordering Defendant 2 to implement the procedures for ownership transfer registration in excess of 980/4,634/4 and 1,337/4 of the same real estate as indicated in the attached list of the lower judgment against Defendant 1 is reversed, and the lower court’s judgment corresponding to that part is revoked, and the corresponding part of the lawsuit is dismissed. The remaining appeals by the Defendants are all dismissed. The total costs of the lawsuit shall be doublely borne by the Plaintiff, and the remainder shall be borne by the Defendants.

We examine the grounds of appeal.

The obligee's subrogation right under Article 404 of the Civil Code refers to the right of the obligee to exercise the obligee's subrogation right against a third party when it is necessary for the obligee to preserve the obligee's own claim against the obligor, so it is recognized that the preservation of the preserved claim is necessary and the due date for the obligee's subrogation right comes into existence, regardless of the cause of the claim, and the claim against the obligor is not required to be set up against the third obligor. Thus, even in exercising the obligee's subrogation right, it is sufficient for the Plaintiff, the obligee, to prove the existence of the claim and the necessity of preservation, and the due date for the obligee's subrogation right, and it is not necessary to prove even the cause of the claim and the fact that the claim are a claim that can be set up against the Defendant who is the third obligor. Therefore, in case where the obligee filed a lawsuit against the obligor for the performance of the claim based on the preserved claim, and the obligee's subrogation lawsuit against the third obligor is not asserted against the obligee and the obligor (see Supreme Court Decision 200Da153138, Jun. 29, 20005, 2000).

According to the records, the plaintiff and the joint plaintiff 2 of the court of first instance filed a claim against the defendants and co-defendant 3 of the court of first instance for the registration of ownership transfer based on the restoration of real name, and the co-defendant 3 of the court of first instance filed a claim against the co-defendant 3 of the court of first instance for the registration of ownership transfer based on the sale on March 10, 1996 to the plaintiff and co-defendant 2 of the court of first instance to execute the registration procedure for ownership transfer based on the sale on March 10, 1996. The court of first instance declared that the co-defendant 3 of the court of first instance did not appeal, and the judgment of the court of first instance became final and conclusive. Thus, in relation to the co-defendant 3 of the court of first instance, the plaintiff has a claim for ownership transfer registration based on the final and conclusive judgment as to the share owned by the defendants as to the real estate of this case in the relation to the co-defendant 3 of the above co-defendant 3 of the court of first instance.

The court below's finding that the plaintiff's right to claim for ownership transfer registration against co-defendant 3 of the court of first instance is not appropriate at the time of explanation of its reasoning. However, the conclusion is justifiable, and there is no error of law by misapprehending the legal principles on the validity of a sales contract concluded for the purpose of evading land transaction permission, and as seen above, insofar as the judgment in favor of the plaintiff who ordered co-defendant 3 of the court of first instance to implement the procedure for ownership transfer registration becomes final and conclusive, the defendants' assertion that the period of extinctive prescription of the plaintiff's right to claim for ownership transfer registration expires

However, according to the above examination, the plaintiff is merely one of the co-owners of the real estate of this case, and unless there are special circumstances such as the joint purchase of the real estate for a joint business or the agreement between the joint buyers otherwise on the share ratio of the purchase of the real estate, the plaintiff shall have the right to claim for the registration of ownership transfer against the co-defendant 3 of the court of first instance only in the case where the creditor's claim is preserved for the creditor's claim by acting in subrogation of the debtor's claim. Thus, the plaintiff can exercise the right to claim for the registration of ownership transfer against the defendants of the above co-defendant 3 of the court of first instance only within the extent of the corresponding share ratio, and there is no need to preserve the above share ratio since the co-defendant 3 of the court of first instance has the right to subrogate the defendants of the above co-defendant 3 of the above share ratio.

Nevertheless, the court below rejected the lawsuit against the Defendants of the joint plaintiff 2 of the court of first instance on the ground that the person who purchased the instant real estate jointly with the Plaintiff is not the joint plaintiff 2 of the court of first instance but the father of the Plaintiff, and that the joint plaintiff 2 of the court of first instance is not recognized as a preserved claim, but maintained the judgment of the court of first instance ordering the execution of the procedure for ownership transfer registration to the portion exceeding the above shares corresponding to the Plaintiff’s preserved claim. Thus, the court below's measures are not erroneous in the misapprehension of legal principles

Therefore, among the judgment of the court below, the part ordering the Defendants to implement the registration procedure for ownership transfer in excess of the share in the order corresponding to one half of their respective ownership shares is reversed. Since this part is sufficient to be directly tried in this court, it is decided to sworn in accordance with Article 437 of the Civil Procedure Act. The judgment of the court of first instance that constitutes the above reversal portion is revoked, and the lawsuit is dismissed, and all remaining appeals by the Defendants are dismissed. It is so decided as per Disposition by the assent

Justices Yang Sung-tae (Presiding Justice)