[구상금등][미간행]
[1] Whether a claim for return of unjust enrichment has been made to a general creditor who did not receive a distribution in a distribution schedule implemented by a final distribution schedule (affirmative)
[2] In a lawsuit of demurrer against distribution, in a case where the distribution creditor who received the distribution based on a final and conclusive judgment in favor of the creditor has become the result of receiving the distribution as well as the amount to be borne by other distribution creditor, whether the other distribution creditor may file a claim for return of unjust enrichment against the said distribution creditor (affirmative)
[1] Article 741 of the Civil Act, Articles 148 and 256 of the Civil Execution Act / [2] Article 741 of the Civil Act, Articles 151 and 157 of the Civil Execution Act
[1] [2] Supreme Court Decision 2006Da39546 decided Feb. 9, 2007 (Gong2007Sang, 433) / [1] Supreme Court Decision 99Da26948 decided Mar. 13, 2001 (Gong2001Sang, 863) Supreme Court Decision 2003Da32681 decided Apr. 9, 2004 (Gong2004Sang, 795)
(Attorney Han-han, Counsel for defendant-appellee)
The Korea Export Insurance Corporation (Attorney Kim Chang-hoon et al., Counsel for defendant-appellant)
Daegu District Court Decision 2005Na14791 Decided March 8, 2006
The appeal is dismissed. The costs of appeal are assessed against the defendant.
The grounds of appeal are examined.
Since the execution of distribution according to the finalized distribution schedule does not have to confirm the substantive rights, in case where a creditor who is liable to receive a distribution fails to receive a distribution and receives a distribution, the creditor who did not receive the distribution has the right to claim the return of unjust enrichment against the person who received the distribution even if he did not receive the distribution, regardless of whether he raised an objection to the distribution, and the creditor who did not receive the distribution does not regard it as a general creditor (see Supreme Court Decision 99Da26948 delivered on March 13, 201).
On the other hand, a lawsuit of demurrer against distribution is merely a relative settlement of disputes between the opposing parties, and its judgment is effective only against the parties to the lawsuit. Thus, even in a case where a certain creditor has received a distribution in accordance with the distribution schedule revised by the final and conclusive judgment in favor of the parties in the lawsuit of demurrer against distribution, if the said distribution is deemed as the result of the receipt of the distribution even to the portion to be distributed by the other distribution creditor who is not the person who has received the final and conclusive judgment in the lawsuit of demurrer against distribution, the other distribution creditor may file a claim for return of unjust enrichment against the creditor who received the distribution in accordance with the final and conclusive judgment in favor of the lawsuit of demurrer against distribution in accordance with the above legal principles (see Supreme Court Decision 2006Da39546, Feb. 9,
The judgment of the court below to the same purport is just, and there is no error in the misapprehension of legal principles as to unjust enrichment and objection to distribution as alleged in the grounds of appeal.
The Supreme Court precedents cited in the grounds of appeal do not constitute a proper precedent, unlike this case.
Therefore, the appeal is 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.
Justices Kim Young-ran (Presiding Justice)