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The instant lawsuit is dismissed.
Litigation costs shall be borne by the plaintiff.
Reasons
1. Basic facts
A. The Defendant and his spouse share the real estate listed in the attached Table C (hereinafter “instant real estate”) as 2/3 shares and 1/3 shares, respectively.
B. On March 25, 2015, the Plaintiff: (a) a notary public of a notarial deed stating that C shall pay KRW 31,00,000 to the Plaintiff by March 25, 2015, is the “notarial deed of this case” which is “No. 1015, 2014, hereinafter referred to as the “notarial deed of this case”).
C. The instant real estate is established on June 5, 2013 by the mortgagee E Union, the maximum debt amount of 288,000,000,000 won, and the obligor. D. There is no positive property other than the share in the instant real estate. [Recognition grounds] The fact that there is no dispute over the instant real estate, A’s evidence Nos. 1 through 6 (each entry, including serial numbers, and the purport of the entire pleadings).
2. As to the judgment on this safety defense, the plaintiff asserted the right to claim a partition of co-owned property on the real estate of this case in subrogation of C, the debtor, the right to preserve the claim on the Notarial Deed by the lawsuit of this case, as the right to claim a partition of co-owned property on the ground that the right of subrogation of the plaintiff
In principle, the issue of whether the right is exercised or not is decided by the right holder according to his free will.
If the debtor is able to exercise the debtor's right on behalf of the debtor even though the debtor does not exercise his/her right, it is necessary to preserve the creditor's right by exercising such debtor's right.
Here, the necessity of preservation is the risk of not being able to obtain full satisfaction of a creditor's claim unless the creditor exercises his/her right by subrogation of the debtor's right, considering the contents of the creditor's right to preserve, the existence of the debtor's financial ability if the creditor's right to preserve is a monetary claim, the relationship between the creditor's right to preserve and the right