In a case where the parties have not designated the obligation to be appropriated for repayment with the same kind of obligation as the one of the same creditors, the obligee and the person responsible for assertion and certification as to the fact that the obligation has been fully appropriated for payment, because there is a designation or agreement of appropriation which is more favorable than that of the statutory appropriation by means of the method of appropriation (=legal appropriation of obligation) and the proportional appropriation of obligation, or the order

Articles 476 and 477 of the Civil Act, Article 288 of the Civil Procedure Act

Supreme Court Decision 93Da49338 delivered on February 22, 1994 (Gong1994Sang, 1077) Supreme Court Decision 2007Da7712 Delivered on February 12, 2009

Plaintiff

Defendant 1 and one other

Daegu District Court Decision 201Na16231 Decided August 17, 2012

The judgment below is reversed, and the case is remanded to the Daegu District Court Panel Division.

The grounds of appeal are examined.

1. Where a debtor bears several obligations for the same kind of obligation to the same creditor, and the party does not designate the obligation to be appropriated for the repayment, the payment shall be made according to Article 477 of the Civil Act, and in particular, according to Article 477 subparagraph 4 of the Civil Act, where the order of statutory appropriation of obligation is identical under Article 4777 subparagraph 4 of the Civil Act, it shall be appropriated for the repayment of each obligation in proportion to the amount of obligation. Therefore, unlike the legal effect granted by the foregoing proportional appropriation of obligation, unlike the legal appropriation of obligation according to the above proportional appropriation of obligation, a person who claims that the above obligation has been fully appropriated for the payment of obligation is more favorable than the legal effect granted by the statutory appropriation of obligation, or more than the legal effect granted by the statutory appropriation of obligation, or more than the legal effect granted by the statutory appropriation of obligation than the order of appropriation of obligation, shall be liable to assert and prove the fact. In this case, if the claimant of the above fact failed to prove it, the statutory appropriation shall be made in proportion to each obligation (see Supreme Court Decisions 93Da493938, Feb. 227, 7, 27, 27

2. The court below and the first instance court, which partially admitted by the court below, held that the Defendants are liable to the Plaintiff for the reimbursement of this case, according to the facts found in its reasoning. Defendant 1’s father Nonparty 1’s father, who transferred ownership of 2,364 square meters prior to the Plaintiff’s Yancheon-gun, Seocheon-gun, Seocheon-gun, the Plaintiff’s father and 2,006 square meters prior to the above transmission (number 1 omitted) (hereinafter “instant land”) and the above 2,006 square meters prior to the above transmission (number 2 omitted) (hereinafter “the instant land”). The Defendants’ assertion that Defendant 1’s father, on July 8, 2002, paid all the amount of reimbursement of the instant land to the Plaintiff. However, the Defendants’ claim that Defendant 1’s father and Nonparty 2 sold the instant land to Nonparty 2 of the Plaintiff’s father on July 9, 202, as well as that there was no reason to acknowledge that the Plaintiff completed the registration of ownership transfer from the Defendants’s title transfer.

3. However, according to the records, with respect to the defendants' assertion that the obligation for indemnity of this case was repaid due to the transfer of ownership of the land in this case, the plaintiff asserted that the loan claim of KRW 10 million loaned to defendant 1 (hereinafter "the loan claim of this case") around February 22, 1997 due to the transfer of ownership of the land in this case was repaid and that the obligation for indemnity of this case was not repaid, and that the defendants again asserted that the loan claim of this case did not exist.

As can be seen, inasmuch as the argument between the plaintiff and the defendant on the ground that the ownership of the land in this case was transferred is not a sales contract acknowledged by the court below but to repay the debt existing prior to it, the court below needs to examine the debt to be extinguished by the ownership of the land in this case. First, the plaintiff is responsible for proving the existence of the loan in this case, and if the existence of the loan in this case is not proved, the ownership of the land in this case shall be deemed to have been transferred to repay the claim for indemnity in this case. Next, in the event the existence of the loan in this case is proved, the determination of the target and scope of the claim to be extinguished by the satisfaction of payment shall be made by examining the legal principles as seen above with regard to the designation or agreement on the satisfaction of the claim in this case and the priority of the statutory appropriation of payment, or otherwise, if the designation of the appropriation of payment or the order of appropriation of payment is not proved, it shall be deemed that the claim in proportion to the amount

4. Nevertheless, without examining the above points, the court below rejected the defendants' defense of payment, considering that there is no evidence to support that the obligation for reimbursement was repaid due to the transfer of ownership of the land of this case. In this regard, the court below erred by misapprehending the legal principles on the existence of the claim and the burden of proof of satisfaction of payment, thereby failing to exhaust all necessary deliberations, which affected the conclusion of the judgment.

5. Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Shin Young-chul (Presiding Justice)