Cases of misunderstanding the legal principles as to the subrogation right of the obligee

Even in cases where Party A, after the title trust of real estate was held by the Plaintiff, an exchange contract was concluded between the Defendant and the Defendant, and the agreement was made to transfer the said real estate to the Defendant, the Defendant cannot claim that the Plaintiff, who is the debtor, file a claim for the registration of ownership transfer of such real estate, in subrogation of Party A, the Defendant directly file

Article 404 of the Civil Act

Plaintiff (Counterclaim Defendant)

Defendant (Counterclaim Plaintiff)

Seoul Central District Court Decision 65Na669-1, 669-2 delivered on November 24, 1966

We reverse the original judgment.

The case shall be remanded to the Panel Division of the Seoul Civil District Court.

The grounds of appeal Nos. 1 and 2 are examined as follows.

According to the facts established by the court below, on December 20, 1957, the non-party 2 and the non-party 2 were the owner of the non-party 1 at the time of the Incheon City ( Address 1 omitted) No. 268 square meters, but the non-party 1 purchased the non-party 1 at the time of division and transfer registration, and the non-party 2 sold the whole part of the land purchased to the non-party 2 to the non-party 2, and the non-party 2 sold all the non-party 268 square meters of the site to the non-party 3 who is the father of the non-party 6 (hereinafter the non-party 2) and the non-party 3 purchased the non-party 7 square meters of the title of the non-party 1 in the name of the non-party 3 and the non-party 2 purchased the non-party 2's right to purchase the land at the request of the non-party 3 to the non-party 7 square meters of the title 2.

The ground of appeal No. 3 is examined.

As seen earlier, the actual right holder of the site No. 268 square meters, including the part of the land in the dispute in this case, is Nonparty 3 and the same Nonparty was registered in title with the Plaintiff, and the exchange contract was concluded between the Defendant on October 5, 1960 and the non-party 3, who is the actual right holder, and thus, the contract was entered into between the Defendant and the Defendant on October 5, 1960, with the transfer registration for the part of the land in the dispute in this case, even if the contract was entered into between the Defendant and the Defendant, on behalf of the non-party 3, it is not possible for the Defendant to file a claim against the same non-party, who is the debtor of the part in the dispute in lieu of the Plaintiff, to directly file a claim with the Defendant

Therefore, by applying the provisions of Article 406(1) of the Civil Procedure Act, it is so decided as per Disposition by the assent of all participating Justices.

Supreme Court Judge Do-dong (Presiding Judge) Do-dong (Presiding Judge) Do-won Mab-Ba