Whether a new lawsuit can be the object of creditor's subrogation right (negative)

In a case where a vicarious exercise is necessary to preserve a claim, subrogation is permitted not only to the substantive rights but also to the rights under the Civil Procedure Act. However, it is reasonable to place the exercise of the right in individual litigation related to the performance of a lawsuit after a lawsuit between the debtor and the third debtor has been pending, and thus, it is not permissible for creditor subrogation to be permitted. In the same purport, a lawsuit seeking resumption, continuation, and re-adjudication of the previous litigation procedure cannot be the object of creditor subrogation, as in the case of filing an appeal.

Article 404 of the Civil Act, Articles 51 and 451 of the Civil Procedure Act

Hamp Livestock Cooperatives (Law Firm Barun Law, et al., Counsel for the plaintiff-appellant)

Article 12 (Application for Review)

Article 20 (Bindingion of Attorney Park Young-chul, Counsel for Review)

Gwangju District Court Decision 201Na17768 Decided July 25, 2012

The judgment of the court of first instance is reversed, and the lawsuit for retrial of this case is dismissed. All costs of the lawsuit are borne by the plaintiff for retrial.

We examine the grounds of appeal ex officio prior to judgment.

1. The exercise of subrogation in order to preserve the claim should be permitted not only to the rights under substantive law but also to the rights under legal procedure. However, since it is reasonable to leave the exercise of the right in individual lawsuit related to the performance of a lawsuit after the debtor and the third debtor's lawsuit has been pending between the debtor and the third debtor to the debtor's will, subrogation cannot be permitted. In light of the same purport, it is reasonable to deem that the filing of a lawsuit for resumption, continuation and re-adjudication of the previous litigation procedure cannot be the object of subrogation, just as the filing of an appeal is filed.

2. According to the records, the re-adjudications filed a lawsuit seeking the cancellation of the judgment subject to a retrial and the dismissal of the Plaintiff’s claim by subrogation of Defendant 2 as a creditor holding a monetary claim against the re-adjudications, and the first instance court rejected the Defendant’s principal safety defense, on the ground that there is no ground for retrial as asserted by the re-adjudications, and the lower court dismissed the instant petition for a retrial on the ground that there is no ground for retrial as asserted by the re-adjudications, and the lower court dismissed the Plaintiff’s appeal on the ground that there is no ground for retrial as asserted by the re-adjudications.

3. Examining in light of the legal principles as seen earlier, the filing of a lawsuit for review cannot be the object of the creditor’s subrogation right, and thus, the plaintiff for review is deemed not a party to the lawsuit for review of this case. The lawsuit for review of this case filed by the plaintiff for review without a party to review is unlawful.

Nevertheless, the court below did not dismiss a lawsuit for retrial of this case and affirmed the judgment of the court of first instance which dismissed the petition for retrial of this case, thereby making a decision on the merits. In so doing, the court below erred by misapprehending the legal principles as to the right which can be the object

Therefore, without examining the grounds of appeal, the judgment of the court below is reversed without examining the grounds of appeal. Since this case is sufficient for the court to directly render a judgment, this case is dismissed pursuant to Article 437 of the Civil Procedure Act, and thus, the judgment of the court of first instance is revoked and the litigation of this case is dismissed. The total costs of the lawsuit are borne by the losing party. It

Justices Park Poe-dae (Presiding Justice)