(a) The effect of an constructive confession, where a writ of summons is impossible to be served after the requirements for constructive confession have been met;

(b) Requirements for exercising creditor's subrogation right;

C. In a case where one of the co-inheritors has made a registration solely on the inherited real estate, whether one of the other co-inheritors may seek an implementation of the procedure for cancelling the registration on the whole co-inheritors’ share in the co-inheritors

A. If the requirements for constructive confession under Article 139 of the Civil Procedure Act are met and the effect as an constructive confession has occurred once, it shall not be deemed that the effect of the constructive confession already occurred even if a writ of summons on the subsequent date is impossible to be served and served by public notice is not lost. Thus, it shall be deemed that it is erroneous to conduct fact-finding in violation of the constructive confession by judging the facts to be regarded as a confession under the above provision.

B. The obligee's subrogation right under Article 404 of the Civil Code refers to the obligee's right to exercise the obligee's right to exercise the obligee'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 necessity of preservation of the preserved claim is confirmed and the due date comes, and it does not require any interference to exercise 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 party. Therefore, in a case where the obligee's subrogation right is exercised in court, it is sufficient that the obligee can prove the existence of the claim and the necessity of preservation, the arrival of the time limit, etc., and it is not necessary to prove the existence of the

C. One co-owner of a real estate may seek the cancellation of the entire registration for the joint-owned property by a third party if the ownership transfer registration for the invalidation of the cause of the joint-owned property has been made in the name of a third party with respect to the pertinent real estate. If one of the co-owners interferes with the right of another co-owner by making the registration for the transfer of the ownership for the whole joint-owned property jointly owned by inheritance in an unlawful manner, and if the other co-owner interferes with the right to the joint-owned property by making the registration for the transfer of ownership for the whole joint-owned property jointly owned, one of the co-owners so interferes may seek the implementation of the procedure for the cancellation of the ownership transfer registration for the whole joint-owned property except the co

A. Article 139 of the Civil Procedure Act: Article 404 of the Civil Act; Articles 265 and 1006 of the Civil Act

A. Supreme Court Decision 62Da342 delivered on September 27, 1962, 71Da1716 delivered on October 22, 1971

[Judgment of the court below]

Defendant 1 and five others, Defendant 2, 3, 4, 5, and 6

Daegu High Court Decision 86Na603 delivered on March 3, 1987

The part of the judgment of the court below on the plaintiff's conjunctive claim against the defendant 1 and the plaintiff's conjunctive claim against the defendant 2, 3, 4, 5, and 6 are reversed, and the case is remanded to the Daegu High Court.

The plaintiff's remaining appeals against the defendant 2, 3, 4, 5, and 6 are dismissed.

The costs of appeal against the dismissal of an appeal shall be assessed against the plaintiff.

The grounds of appeal are examined.

1. As to ground of appeal No. 1

(1) According to the reasoning of the lower judgment, in determining the Plaintiff’s claim against Defendant 1 and the primary claim against Defendant 2,3,4,5, and6 (hereinafter “Defendant 2, etc.”), the lower court determined as follows: (a) based on the evidence so adopted, that the ownership transfer registration on the instant real estate was made in the name of Nonparty 1 from the deceased Nonparty 1 to September 6, 1967; (b) again, the ownership transfer registration on the ground of inheritance on May 15, 1984 was made in sequence in the name of Nonparty 2, including Defendant 2; and (c) the deceased Nonparty 1 died in April 23, 1956, and became co-inheritors 2 and the deceased Nonparty 3 as well as the Plaintiff’s share of 1/3; and (d) based on the premise that the deceased Nonparty 3’s death and the deceased Nonparty 2, etc. were groundless, each of the above Plaintiff’s claim against the Defendants 1 and 5, respectively, on the premise that each of the instant real estate was otherwise asserted.

(2) In light of the records, the above fact-finding by the court below as to the primary claim against 5 persons including Defendant 2, etc. is justified and there is no error of law in violation of the rules of evidence since it is just to judge the value of the evidence, and it is therefore groundless.

(3) Under the provisions of Article 139 of the Civil Procedure Act, if the other party does not clearly dispute the facts alleged by the other party because he did not appear at the date of pleading and did not submit written answers or other briefs, even though he was duly summoned by public notice on the date of pleading, he shall be deemed to have led to confession of such facts. However, if the above requirements are met and the validity of the summons as to the date of pleading has occurred as a whole, it shall not be deemed that the effect of confessions already occurred even if the summons was served and served by public notice on the date of presentment, and it shall not be deemed that the effect of confessions already occurred even if it had already been made impossible to serve, and it shall be deemed that the fact-finding that is contrary to the constructive confessions by judging the facts to be regarded as having been led to confession under the above provisions is erroneous (see, e.g., Supreme Court Decisions 62Da342, Sept. 27, 1962; 71Da1716, Oct. 22,

According to the records, in the first instance court of this case, the plaintiff's complaint against the defendant 1 and the request for correction of the cause of claim and the summons of date of pleading as of December 19, 1984 were delivered lawfully by public notice, but the defendant was not present at the date of pleading until the date of pleading is closed at the date of pleading at the seventh day of pleading, and the defendant was not present at the date of pleading and submitted a reply and other legal brief. (The defendant submitted the same defendant's response as of May 20, 1985, but it is not valid as it is not attached, and it does not appear to the purport that it does not dispute the plaintiff's assertion.) The first instance court's rejection of the plaintiff's request against the same defendant was delivered to the court of first instance after the resumption of pleading and service by public notice. However, although the date of pleading was delivered to the court below even after the date of pleading, the plaintiff's reply and other legal principles as to the plaintiff's claim were not presented in accordance with the previous provisions of the Civil Procedure Act.

2. As to ground of appeal No. 2

(1) As to the plaintiff's conjunctive claim against 5, including the defendant 2, the court below acknowledged that the deceased non-party 2 forged the relevant documents and completed the registration of ownership transfer under the name of the deceased non-party 1, as if he purchased the real estate in this case from the deceased non-party 1. Thus, the court below held that all the registration of ownership transfer made under five name, including the deceased non-party 2, including the defendant 2, and his heir, is null and void within the extent exceeding 1/3, which is the deceased non-party 2's inheritance shares. First, the plaintiff's claim against 5, including the defendant 2, for the cancellation of the registration procedure on the plaintiff's inheritance shares 1/3, which belongs to the deceased non-party 3's heir, was justified, but the plaintiff's claim against the deceased non-party 3's heir for the cancellation of the registration of ownership transfer under the premise that the plaintiff's claim against the deceased non-party 3, who was the deceased non-party 3's heir's claim for the registration of ownership transfer.

However, the obligee's subrogation right stipulated in 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/her claim against the obligor. In such a case, it is sufficient if the preservation of the preserved claim is recognized and the due date comes, and it does not require any interference with the exercise of the subrogation right, regardless of the cause of the claim, and it does not require that the obligor's claim against the third party can be set up against the obligor. Thus, in a case where the obligee's subrogation right is exercised, it is sufficient that the Plaintiff, the obligee, even in a case where the obligee exercises the obligee's subrogation right, must prove the existence of the claim and the necessity of preservation, the arrival of the due date, etc., and there is no need to prove the existence

According to the records, under the premise that the plaintiff against the deceased non-party 3's heir in this case held the title trust of this case against the deceased non-party 1, the plaintiff filed a claim against the deceased non-party 3's heir for the implementation of the procedure for the registration of ownership transfer based on the cancellation of title trust with respect to 1/3 of the deceased non-party 3's heir's share in this case, and the plaintiff's heir's heir's right to claim for the registration of ownership transfer registration based on the cancellation of title trust is accepted at the court of first instance and the court below, or the judgment in favor of the plaintiff became final and conclusive. Thus, the plaintiff proved that the deceased non-party 3's heir except the defendant 1 had the right to claim for the registration of ownership transfer registration against the defendant 5 (the right to claim for the cancellation of the above right to claim for the registration of ownership transfer against the non-party 1, the plaintiff's heir's right to claim for the cancellation of the above right to claim for the registration of ownership transfer.

Therefore, the judgment of the court below that rejected the plaintiff's above subrogation claim is erroneous in the misapprehension of the legal principle as to the obligee's subrogation right. Therefore, it is reasonable to point this out.

(2) One of the co-owners of the real estate can seek the cancellation of the entire registration for the joint-owned property against a third party as an act of preservation where the ownership invalidation registration has been made in the name of a third party with respect to the real estate in question. Thus, if one of the co-owners interferes with the same right as to the joint-owned property by an inheritance, one of the co-owners can seek the execution of the procedure of cancellation registration for the ownership transfer registration for the remaining co-owned property except the unique shares of the co-owners as to the joint-owned property, if the other co-owners interferes with the joint-owned property by making the registration of ownership transfer registration for the whole joint-owned property under his own name by improper means.

However, according to the records, the plaintiff is one of the conjunctive claim causes of this case. The real estate of this case is the public property of the above three persons jointly inherited by the deceased non-party 3, the deceased non-party 2, and the plaintiff 3's share of 1/3, respectively, and under the premise that the deceased non-party 2 had completed the procedure for the registration of transfer of ownership in his own name by illegal means (the above assertion is the basis recognized by the court below) and is the preservation act of co-owner, the plaintiff non-party 2, the deceased non-party 2's heir, the deceased non-party 3, the deceased non-party 3's heir's share of the deceased non-party 3, the procedure for the registration of cancellation of transfer of ownership is sought (the plaintiff's preparatory claim No. 492, Dec. 16, 1983) but it is obvious that the court below dismissed the plaintiff's above conjunctive claim without any judgment thereon, and therefore, in light of the above legal principles, the judgment of the court below's omission is also justified.

3. Therefore, the part of the judgment of the court below against the plaintiff as to the plaintiff's conjunctive claim against the defendant 1 and 5 of the judgment below against the plaintiff as to the plaintiff's conjunctive claim against the defendant 2, etc. is reversed and remanded to the court below for further proceedings consistent with this part. The remaining appeal against the plaintiff 2, 5 is without merit. Thus, the appeal against the plaintiff 2, 5 is dismissed, and the costs of appeal against the dismissal of the appeal are assessed against the losing party

Justices Choi Jae-ho (Presiding Justice)