If the heir who is a foreigner is unable to specify it, the obligee's subrogation

In order for a foreigner to subrogate provisional registration of domestic property when he/she dies, the heir should be specified, and if it is impossible to specify it, it is impossible to cancel provisional registration by exercising the obligee's subrogation right.

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Civil Code § 404. Creditor's right of subrogation

Seoul Central District Court 2018Na19025

Korea

AA

May 29, 2019

June 19, 2019

1. The plaintiff's appeal is dismissed.

2. The costs of appeal shall be borne by the Plaintiff.

The judgment of the first instance shall be revoked. The defendant will implement the procedure for registration of cancellation of the transfer of ownership, which was completed by the Seoul Central District Court No. 27728 of April 8, 2004 with respect to the real estate listed in the attached list to BB of the United States of America.

1. Basic facts

BB completed the registration of ownership transfer by inheritance on September 10, 1999 with respect to the real estate listed in the separate sheet (hereinafter referred to as “instant real estate”) on April 8, 2004; the Defendant completed the provisional registration for the right to claim ownership transfer registration based on purchase and sale reservation (hereinafter referred to as “the provisional registration of this case”); the fact that the unpaid capital gains tax as of May 16, 2016 was due to delinquency in payment of capital gains tax imposed from around 1995; the Plaintiff seized the instant real estate on October 13, 2004; the fact that the BB died on June 28, 2017 does not conflict between the parties.

2. Determination as to the defendant's defense prior to the merits

A. Defendant’s defense prior to the merits

With respect to the instant lawsuit on which the Plaintiff asserted that the deceased’s heir, including CCC, who is the deceased’s heir, may be deemed insolvent in light of the amount of unpaid capital gains tax as seen earlier, and that the above heir’s claim for cancellation of the provisional registration of this case by subrogation of the deceased’s heir on behalf of the deceased, the Defendant asserted that the instant lawsuit is unlawful since the deceased’s heir, who is the debtor, was not specified and the insolvency was not proved.

B. Determination

The fact that the deceased’s delinquent tax amount is large, and there is no particular property in Korea is recognized. However, in the instant lawsuit on behalf of the deceased’s heir who succeeded to the deceased’s transfer income tax obligation, the Plaintiff must prove who the deceased’s heir is insolvent. According to the materials attached to the witness report submitted to the court by reason that CCC’s report on the renunciation of inheritance by the deceased’s heir was accepted on August 22, 2017 by Busan Family Court 2017Mo2430, and the Plaintiff does not specify his subordinate heir at all. Thus, the Plaintiff’s lawsuit of this case seeking compensation on behalf of the debtor without specifying the debtor is unlawful (the Plaintiff’s existence or absence of the deceased’s heir belongs to the Plaintiff on November 28, 2018 under Article 1058 of the Civil Act, the Plaintiff may seek cancellation of the provisional registration of this case against the Defendant’s heir on the ground that it is not clear whether the deceased’s heir exists or not. However, according to the evidence No. 5, the Plaintiff’s waiver of ownership can be deemed to be subject to the deceased’s waiver of succession.

3. Conclusion

Therefore, the lawsuit of this case shall be dismissed as it is unlawful, and the judgment of the court of first instance is just in conclusion, and the plaintiff's appeal is dismissed. It is so decided as per Disposition.