[1] Standard for determining whether the main purpose of a sales contract is to have a procedural act conducted is the validity of a sales contract concluded mainly for the purpose of having the procedural act conducted

[2] In a case where in the exercise of creditor's subrogation right, the creditor filed a lawsuit for the claim for performance based on the preserved claim against the debtor and the judgment in favor of the creditor becomes final and conclusive, whether the garnishee may contest the existence of the claim (negative in principle), and in a case where the acquisition of the claim is null and void with the main purpose of enabling litigation, whether the garnishee may contest the existence of the claim (affirmative)

[1] Articles 6 and 563 of the Trust Act / [2] Article 404 of the Civil Act, Article 6 of the Trust Act

[1] Supreme Court Decision 200Da4210 Decided December 6, 2002 (Gong2003Sang, 297) Supreme Court Decision 2007Da53464 Decided December 13, 2007 (Gong2008Sang, 17) / [2] Supreme Court Decision 87Da961 Decided February 23, 198 (Gong198, 580), Supreme Court Decision 96Da10522 Decided March 27, 1998 (Gong198Sang, 1151), Supreme Court Decision 2006Da8270, 82717 (Gong207, 857) Decided May 10, 207

Central Asset Management Co., Ltd. (Law Firm Barun, Attorneys Kim Jae-up et al., Counsel for the defendant-appellant)

Defendant 1 and two others (Attorneys Jeong Yong-soo et al., Counsel for the defendant-appellant)

Seoul High Court Decision 2013Na57322 decided September 26, 2014

All appeals are dismissed. The costs of appeal are assessed against the Plaintiff.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. As to the grounds of appeal Nos. 2 and 3

A. In a case where a sales contract was mainly made for the main purpose of having a person conduct litigation, even if the sales contract does not fall under a trust under the Trust Act, Article 6 of the Trust Act shall be deemed null and void by analogy, and the main reason for allowing a person to conduct litigation shall be determined in light of all the circumstances, including the details and methods of the sales contract concluded, the interval between the parties to the sales contract and the filing of the lawsuit, and the status relationship between the parties to the sales contract (see Supreme Court Decision 2000Da4210, Dec. 6,

B. After recognizing the facts as stated in its reasoning, the lower court determined that the instant sales contract between the Plaintiff and the co-defendant 4 of the first instance court was null and void, in light of the following circumstances.

(1) At the time of the conclusion of the instant sales contract, the right to lease on a deposit basis, the right to collateral security, etc., much more than the appraised price for the instant building was established. Defendant 1 and Defendant 2, who only owned only the site of the instant building, filed a lawsuit for removal of the instant building, and Defendant 4 filed a lawsuit against Nonparty 1 for the claim for cancellation of the registration of collateral security transfer, which served as the basis of the instant auction, against Nonparty 1, but was in the first instance trial. In addition, it is difficult to understand that the Plaintiff entered into the instant sales contract with the co-defendant 4 of the first instance trial on February 14, 2012, even though the decision of permission for sale was issued in the instant auction procedure and the Plaintiff was imminent to lose the ownership of the instant building.

(2) The Plaintiff entered into the first contract on the instant building with the co-defendant 4 of the first instance trial on July 1, 201, and the filing of the instant lawsuit was at regular intervals on August 2, 2012, but at the time of the first contract, Co-Defendant 4 of the first instance trial lost the first instance court in the lawsuit claiming the cancellation of the instant mortgage transfer registration filed against Nonparty 1. On February 14, 2012, the Plaintiff and Co-Defendant 4 agreed to cancel the first and second contracts concluded at the time of entering into the instant sales contract, and the first and second contracts concluded at the first instance court’s first instance court’s Co-Defendant 4, who received the instant lawsuit on July 9, 2012, and received the purchase price of KRW 3 billion under the instant sales contract, but the Plaintiff and Co-Defendant 4 of the first instance court did not appear to have received a new receipt on July 26, 2012 from the Plaintiff and the Defendant 2.

(3) At the time of the instant sales contract, the Plaintiff and the Co-Defendant 4 of the first instance trial agreed that KRW 2.5 billion out of the purchase price of KRW 3 billion shall be the acquisition of obligations arising from the instant real right, such as chonsegwon established on the instant building by the Plaintiff or the Korea Asset Management Co-Defendant 4 (hereinafter “Korea Asset Management”) in lieu of satisfaction. The Korea Asset Management Co-Defendant 2 of the 19th century, on July 9, 2012, entered into a contract with the Plaintiff on behalf of the Plaintiff and the Korea Asset Management Co-Defendant 2 of the 19th century, and the Korea Asset Management Co-Defendant 4 of the 19th century (hereinafter “Korea Asset Management Co-Defendant 4 of the 19th century”), and the Korea Asset Management Co-Defendant 2 of the 19th century, which entered into a lawsuit against the Plaintiff on the grounds that the 2nd instance Co-Defendant 4 of the 19th century was the representative of the 1st instance trial on the grounds that the Plaintiff and the 2nd Co-Defendant 2 of the 17th instance judgment.

C. Examining the reasoning of the judgment below in light of the aforementioned legal principles, the judgment of the court below is just and acceptable. Contrary to the allegations in the grounds of appeal, there were no errors in the misapprehension of legal principles as to the interpretation of parties to a real estate sales contract, Article 6 of the Trust Act, or violation of the

2. Regarding ground of appeal No. 1

In exercising a creditor's subrogation right, if the creditor filed a lawsuit against the debtor to demand performance based on the preserved claim and the judgment becomes final and conclusive, the third debtor cannot contest the existence of such claim (see, e.g., Supreme Court Decisions 87Meu961, Feb. 23, 198; 96Da10522, Mar. 27, 198; 2006Da8270, 82717, May 10, 2007; 2006Da8270, 82717, etc.). In principle, the third debtor can contest the existence of such claim in cases where the acquisition of such claim is made with the focus of having the debtor conduct litigation by analogy of Article 6 of the Trust Act.

The Plaintiff filed the instant lawsuit against the Co-Defendant 4 of the first instance trial and the Defendants. As to the Co-Defendant 4 of the first instance trial, the Plaintiff sought implementation of the procedure for ownership transfer registration based on the instant sales contract with respect to the instant real estate. The Defendants sought ownership transfer registration and cancellation of the establishment registration of the neighboring mortgage by subrogationing Co-Defendant 4 of the first instance trial with respect to the instant building, and Co-Defendant 4 of the first instance trial did not dispute the Plaintiff’s issuance of the complaint at the first instance trial, and the first instance trial rendered a favorable judgment on July 2, 2013, and the first instance trial Co-Defendant 4 did not appeal within the lawful appeal period, and the fact that the first instance judgment became final and conclusive is apparent in the record.

However, the sales contract of this case is concluded with the main purpose of litigation and is null and void. Thus, in light of the above legal principles, the Defendants, as the third obligor of creditor subrogation lawsuit, can contest the existence of the Plaintiff’s right to claim ownership transfer registration against the co-defendant 4 of the first instance trial.

In the same purport, the court below accepted the defendants' assertion that the plaintiff is not in the position of creditor who is not in the position of creditor who is entitled to exercise the creditor's subrogation right, and dismissed the plaintiff's lawsuit in this case against the defendants, and there is no error in the misapprehension of legal principles as to the plaintiff's standing to sue

3. Conclusion

Therefore, all appeals are dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Jo Hee-de (Presiding Justice)