If a claim to be compensated by subrogation is not recognized in a creditor subrogation suit, whether such subrogation suit is appropriate (negative)

In a creditor subrogation lawsuit, where the right of the creditor to be compensated by subrogation is not recognized as to the debtor, the creditor's own becoming the plaintiff and becomes disqualified as the plaintiff who exercises the debtor's right to the third debtor, so the subrogation lawsuit shall be dismissed in an unlawful manner.

Article 404 of the Civil Act, Article 226 of the Civil Procedure Act / [Institution of Lawsuit]

[Plaintiff-Appellant] Plaintiff 1 and 1 other (Law Firm Han-sung, Attorneys Park Jae-young and 1 other, Counsel for plaintiff-appellant-appellant-appellant-appellant-appellant-appellant-Appellee)

[Judgment of the court below]

Defendant 1 and one other Defendants (Attorney Kim Sang-hoon, Counsel for the defendant-appellant)

Busan District Court Decision 91Na947 delivered on January 17, 1992

The appeal is dismissed.

The costs of appeal are assessed against the plaintiff.

1. Judgment on the grounds of appeal Nos. 1 and 2 by the Plaintiff’s attorney

The judgment of the court below as to the points out of theory (the fact that the authenticity of evidence No. 3 is not recognized, the fact that the plaintiff's father, the deceased non-party 1 and the defendant 2, who are the plaintiff's father, rejected the evidence that the land exchange agreement was concluded as the main cause of claim as alleged by the plaintiff, and the plaintiff has continuously occupied the land of this case since March 5, 1962 and rejected the evidence that correspond to the plaintiff's conjunctive cause of claim) is just in light of the relation of evidence as stated by the court below, and there is no error of law by misunderstanding the facts affecting the conclusion of the judgment, such as the theory of lawsuit, which affected the conclusion of judgment.

All arguments are not acceptable since they merely criticize the determination of evidence and the recognition of facts belonging to the exclusive jurisdiction of the court below.

2. Determination on the ground of appeal No. 3

The court below rejected the plaintiff's lawsuit against the defendant 1 on the ground that the plaintiff's claim for the transfer registration of ownership against the defendant 2 on the part of the plaintiff's claim for the transfer registration of ownership against the defendant 2, and the defendant 2 completed the transfer registration of ownership under his name with the defendant 1, who is a child for the purpose of evading the plaintiff's request for the transfer registration of ownership. This is a registration of invalidation based on the false conspiracy, and the defendant 2 subrogated the defendant 2, but it is not recognized that the plaintiff has the right to claim the transfer registration as alleged against the defendant 2, but there is no other material as to the fact that the plaintiff has the right to subrogate the defendant 2. Thus, the plaintiff's lawsuit against the defendant 1 on the ground that

According to the records, it is clear that the plaintiff, on the premise that he has the right to claim the transfer registration of ownership as to one-half portion of the land in this case against defendant 2, by subrogation of defendant 2. If the creditor who is to be preserved by subrogation in a creditor subrogation lawsuit does not have the right to claim the cancellation registration of ownership transfer registration, the creditor himself becomes the plaintiff and becomes the debtor's third debtor's right. Thus, the subrogation lawsuit shall be dismissed in an unlawful manner (see, e.g., Supreme Court Decisions 87Meu2753, Jun. 14, 198; 88Meu4727, Dec. 11, 1990; 91Da13243, Aug. 27, 191). Thus, the court below's rejection of the plaintiff's lawsuit against the defendant 1 in this opinion is justified, and it cannot be accepted as a misapprehension of legal principles as to the invalidation of a lawsuit as alleged in the judgment below.

3. Therefore, the plaintiff's appeal is dismissed, and the costs of appeal are assessed against the plaintiff who has lost. It is so decided as per Disposition by the assent of all participating Justices.

Justices Yoon Jae-ho (Presiding Justice)