[1] Whether the interruption of extinctive prescription due to the filing of a creditor subrogation lawsuit affects the obligor (affirmative)

[2] In a case where a creditor Gap filed a lawsuit claiming the implementation of the procedure for the transfer registration of ownership against Byung on behalf of the debtor Eul on the ground of unjust enrichment on the real estate by subrogation of the debtor Eul, which was rendered final and conclusive after a judgment of retirement was rendered, and the conciliation was concluded to the effect that there is no right to be preserved after the lapse of three months thereafter, and that other creditor Eul did not have any right to be preserved, the case affirming the judgment below holding that the extinctive prescription of the right to claim the transfer registration of ownership against Byung Byung was interrupted by the first creditor subrogation lawsuit by the creditor Gap by the plaintiff Eul

[1] Since the exercise of creditor's subrogation right belongs to the debtor, the interruption of extinctive prescription due to the filing of creditor's subrogation lawsuit also belongs to the debtor.

[2] In a case where Gap filed a lawsuit against Byung on behalf of the debtor Eul, claiming the implementation of the procedure for the registration of transfer of ownership based on unjust enrichment on Byung's behalf of the debtor, but became final and conclusive after being sentenced to a judgment of retirement on the ground that the right to be preserved is not recognized, and after the lapse of three months thereafter, the court below's judgment was concluded to the effect that Byung did not have the right to be preserved. Further, in a case where Eul filed a lawsuit for the same content against Byung by subrogation after the lapse of ten days from the date on which the mediation was concluded, the court affirmed the judgment below that the extinctive prescription of the right to claim the registration of transfer of ownership based on unjust enrichment on Byung's above real estate was interrupted as the first creditor subrogation lawsuit by the creditor subrogation by the creditor Gap, Eul, who was the debtor Eul.

[1] Articles 169, 170, and 404 of the Civil Act / [2] Articles 169, 170, and 404 of the Civil Act

Plaintiff (Law Firm Lee & Lee LLC, Attorneys Lee Dong-hwan et al., Counsel for plaintiff-appellant)

Defendant (Attorney Lee Yong-hoon, Counsel for defendant-appellant)

Seoul High Court Decision 2010Na46307 decided September 9, 2010

The appeal is dismissed. The costs of appeal are assessed against the defendant.

We examine the grounds of appeal.

1. Regarding ground of appeal No. 1

Where a judicial claim is dismissed, dismissed or withdrawn, there shall be no effect of interrupting prescription, but even in such a case, if a judicial claim, intervention in bankruptcy proceedings, seizure or provisional seizure, or provisional disposition is made within six months, the prescription shall be deemed to have been interrupted by the first judicial claim (Article 170 of the Civil Act).

Meanwhile, since the exercise of creditor's subrogation right belongs to the debtor, the interruption of extinctive prescription due to the filing of creditor's subrogation lawsuit also belongs to the debtor.

According to the facts found by the court below, on February 25, 2005, the deceased non-party 1 filed a lawsuit against the defendant on behalf of the non-party 2 claiming the transfer registration of ownership on each of the above real estate listed in the attached list of the court below (hereinafter "each of the real estate of this case"), and on May 14, 2008, the appellate court (Seoul High Court 2008Na20500) rendered a judgment of retirement on the ground that the preserved right is not recognized, and confirmed on June 5, 2008. The non-party 3 filed a lawsuit against the defendant on behalf of the non-party 2 on September 19, 2008, claiming the transfer registration of ownership on each of the above real estate, but on December 4, 2009, the appellate court (Seoul High Court 2009Na6268) filed a lawsuit claiming the transfer registration of ownership on each of the above real estate by subrogation of the defendant and the non-party 209.

In light of the above legal principles, the extinctive prescription of the right to claim ownership transfer registration on the ground of unjust enrichment on each of the instant real estate against the Defendant by Nonparty 2 shall be deemed to have been interrupted by the first obligee subrogation lawsuit by Nonparty 1, 3 and the Plaintiff’s successive obligee subrogation lawsuit.

The judgment of the court below to the same purport is just, and there is no error in the misapprehension of legal principles as to the interruption of extinctive prescription.

2. Regarding ground of appeal No. 2

The lower court determined that the lawsuit of this case seeking the performance of the procedure for ownership transfer registration against the Defendant on behalf of Nonparty 2 does not conflict with the res judicata effect of the pertinent adjustment, on the ground that the determination on the existence of legal relations performed in the pertinent adjustment clause and the cause of the claim, etc. thereof was limited to the absence of the claim between Nonparty 3 and Nonparty 2 asserted as the right to be preserved in the creditor subrogation lawsuit, and that the existence of the right to claim ownership transfer registration based on the return of unjust enrichment against the Defendant by Nonparty 2 related to each of the instant real estate was not determined.

In light of the relevant legal principles and records, the judgment of the court below is just, and there is no error in the misapprehension of legal principles as to the scope of res judicata as alleged in the grounds of

3. As to the third ground for appeal

Examining the facts acknowledged by the court below in light of the relevant legal principles and records, since the plaintiff's subrogation lawsuit of this case cannot be deemed to go against the principle of good faith, even if the court below did not make a clear judgment on it, it does not affect the conclusion of the judgment. The court below did not err in the omission of judgment or the lack of reasoning

4. Conclusion

Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.

Justices Min Il-young (Presiding Justice)