[1] Requirements for exercising a creditor's subrogation right, and in a case where the creditor files a lawsuit against the debtor for a claim for performance of the creditor's subrogation right based on the preservation claim of the creditor's subrogation right and the judgment in favor of the creditor becomes final and conclusive, whether the garnishee

[2] Whether res judicata effect of the final and conclusive judgment in a prior suit affects the subsequent suit in a case where a lawsuit is instituted against the same defendant as the cause of the claim for ownership after the judgment on the claim for ownership confirmation becomes final and conclusive (affirmative)

[1] The obligee's subrogation right under Article 404 of the Civil Code refers to the obligee's right to exercise the obligor's right to a third party in a case where it is necessary for the obligee to preserve his claim against the obligor. In this case, it is sufficient if the preservation of the preserved claim is necessary and the due date comes, and it does not require any interference in exercising the obligee's right of subrogation regardless of the cause of the claim, and it does not require that the obligor's right of subrogation can be set up against the third obligor. Thus, in a case where the obligee exercises the obligee's subrogation right, it is sufficient that the plaintiff, the obligee, even if he exercises the obligee's right of subrogation, should prove the existence of the claim, necessity of preservation, and arrival of the due date, etc., and it is not necessary to prove the existence of the claim, or that the claim is a claim that can be set up against the third obligor, the obligor. Accordingly, if the obligee has won a lawsuit claiming the performance of the claim based on the preserved claim against the obligor

[2] In a case where the legal relation in which the res judicata effect of a final and conclusive prior suit is not the subject matter of a subsequent suit but becomes the subject matter of a subsequent suit, the judgment of the final and conclusive judgment of the previous suit becomes the subject matter of a subsequent suit and the res judicata effect becomes the subject matter of a subsequent suit. Therefore, in a case where a lawsuit is instituted against the same defendant, after the judgment on the claim for confirmation of ownership becomes final and conclusive, which serves as the cause of a claim for ownership based on ownership, the judgment on the existence of ownership in the final and conclusive judgment of the previous suit

[1] Article 404 of the Civil Code / [2] Article 202 of the Civil Procedure Act

[1] Supreme Court Decision 88Meu961 delivered on February 23, 1988 (Gong1988, 580) (Gong1989, 1144 delivered on June 27, 198) Supreme Court Decision 94Da39369 delivered on February 10, 1995 (Gong195Sang, 1310), Supreme Court Decision 95Da18741 delivered on December 26, 1995 (Gong196Sang, 525 delivered on March 27, 198), Supreme Court Decision 96Da10522 delivered on March 27, 198 (Gong198, 1151) / [2] Supreme Court Decision 94Da29749 delivered on December 27, 1994 (Gong209, 297Da529798 delivered on May 29, 205)

E. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S.-Appellee

Defendant 1 and five others (Attorney Kim Hong-dae, Counsel for the defendant-appellee)

Seoul High Court Decision 96Na50300 delivered on March 27, 1998

The judgment below is reversed and the case is remanded to Seoul High Court.

The grounds of appeal are examined ex officio prior to judgment.

The obligee’s subrogation right under Article 404 of the Civil Act refers to the right to exercise the obligor’s right to a third party where it is necessary for the obligee to preserve his claim against the obligor. In this case, it is sufficient if the need for preservation of the claim is recognized and the due date comes, and it does not require any interference to exercise the subrogation right regardless of the cause of the claim, and it does not require that the claim against the obligor may be set up against the third obligor. Thus, in a case where the obligee exercises the obligee’s subrogation right, it is sufficient for the Plaintiff, the obligee, to prove the existence of the claim and necessity for preservation, and the arrival of time limit, etc., even if it is sufficient for the obligee, to prove the existence of the claim, or that the claim is a claim that can be set up against the Defendant, the third obligor, who is the obligor, who is the third obligor, and thus, it cannot be said that the existence of the claim becomes final and conclusive after the final and conclusive judgment becomes final and conclusive (see, e.g., Supreme Court Decision 97Meu1969, supra., Supreme Court Decision 97Da1979898.

The lawsuit of this case is to be held by the court below and held that the deceased non-party 1 was entrusted to the deceased non-party 1 at the time of the circumstance. The plaintiff non-party 1's deceased non-party 1's heir had already terminated the title trust on each of the above lands and had the right to claim cancellation registration against the above inheritors in subrogation of the above inheritors. The plaintiff non-party 1's right to claim cancellation registration against the above inheritors. Meanwhile, according to the records, the plaintiff non-party 2's right to claim cancellation registration against the above inheritors was to be exercised by the court below's branch court's contribution 91-Ga796 against the above inheritors. The plaintiff non-party 1 was the deceased non-party 1 as the deceased non-party 1's deceased non-party 1's non-party 2 (the deceased's heir)'s sole heir, and the plaintiff non-party 2's right to claim cancellation registration on each of the above lands became final and conclusive by the court below's decision.

Therefore, the court below should have deliberated and decided on whether the above inheritor has the right to claim the registration of ownership transfer against the above inheritor, that is, the existence of the preserved claim against the above inheritor, and the Defendants cannot be contested. Thus, the court below should have further decided on whether the above inheritor has the right to claim the registration of cancellation as alleged by the court below. However, the court below decided that the above inheritor's right to claim the registration of ownership transfer against the above inheritor's above inheritor's non-party 1 is not recognized since there is no evidence to support that the plaintiff clan clan's right to claim the registration of ownership transfer against the above inheritor's non-party 1, and the court below dismissed all the appeal against the Defendants of the plaintiff clan clan's non-party 1.

Therefore, the court below erred in determining the existence of the preserved claim, which is the requirement of creditor subrogation lawsuit, and did not decide the above inheritor's right to claim cancellation registration against the defendants. Therefore, the court below erred in the misapprehension of legal principles as to creditor subrogation right, which did not determine the subject matter of lawsuit properly, and in the incomplete hearing and incomplete reasoning.

Therefore, the judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices.

Justices Song Jin-hun (Presiding Justice)