Whether Gap may contest the existence of Eul's right to claim for registration of transfer of ownership against Eul and Eul in the order of Gap, Eul, and Byung in a lawsuit for which Byung filed for registration of transfer of ownership in order of Byung's order

C. In a creditor subrogation lawsuit demanding B to perform the procedure for the registration of ownership transfer based on the sale and purchase of real estate or the cancellation of title trust against B, and in a lawsuit demanding B to perform the procedure for the registration of ownership transfer based on the sale and purchase of the real estate against B, if B accepted C’s claim, it is proved that C has the right to claim registration as alleged in B, and therefore, A cannot contest the existence of its right to claim registration.

Article 404(1) of the Civil Act; Article 48 of the Civil Procedure Act / [Standing to Party]

[Plaintiff-Appellant] Plaintiff 1 and 10 others (Law Firm Gyeong, Attorneys Park Jae-soo et al., Counsel for plaintiff-appellant)

Plaintiff 1 and five others (Attorney Cho Jong-soo, Counsel for the plaintiff-appellant)

Defendant 1 and one other

Busan High Court Decision 94Na4110 delivered on April 7, 1995

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

Before determining the grounds of appeal, this paper examined ex officio.

In the instant lawsuit, the Plaintiffs sought against Defendant 1 and Defendant 2 the co-defendant 1 of the first instance trial to implement the procedure for ownership transfer registration based on the sale and purchase of the instant real estate or the cancellation of title trust, and with respect to Nonparty 1, the Plaintiffs sought to implement the procedure for ownership transfer registration based on each sale and purchase of the said real estate against the Plaintiffs. The above Nonparty 1 was clearly aware of the Plaintiffs’ claim from the first instance trial to July 7, 1993.

Therefore, it is proved that the plaintiffs' right to claim for registration against the above non-party 1 as alleged by the plaintiffs, and the defendants cannot contest the existence of the above right to claim for registration (see, e.g., Supreme Court Decision 87Meu961, Feb. 23, 1988; Supreme Court Decision 88Meu911, Jun. 27, 1989; Supreme Court Decision 94Da39369, Feb. 10, 195).

Therefore, even though the court below should have deliberated and decided on whether the above non-party 1 had the right to claim registration such as the purport of the claim against the defendants, the court below decided that the non-party 2 had the right to claim registration against the above non-party 1 on behalf of the above non-party 1, and dismissed all the plaintiffs' claims against the defendants on the ground that the plaintiffs' claims are without merit without further review.

Therefore, the court below erred by misapprehending the legal principles on the subrogation right of the non-party 1's right to claim registration against the defendants, which is the subject matter of the lawsuit. Therefore, the court below erred by misapprehending the legal principles on the subrogation right of the creditor, which did not determine the subject matter at all.

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 Kim Jong-soo (Presiding Justice)