[부당이득청구사건][고집1966민,76]
Whether the proceeds in excess of the principal and interest are unjust gains when the object of transfer is disposed of.
If a mortgagee disposes of the object to another person, the proceeds from sale in excess of the principal and interest of the secured claim shall be returned to the debtor by unjust enrichment.
Article 372 of the Civil Act
Plaintiff
Defendant
Chuncheon District Court of the first instance (Law No. 65Ga45)
The defendant's appeal is dismissed.
Expenses for appeal shall be borne by the defendant.
The defendant shall pay to the plaintiff 340,000 won with an annual interest rate of 5 percent from December 1, 1964 to the full payment.
The judgment that the lawsuit costs should be borne by the defendant and the declaration of provisional execution were sought.
The defendant¡¯s attorney shall revoke the original judgment.
The plaintiff's claim is dismissed.
The costs of the lawsuit are assessed against all of the first and second trials.
Since dry field No. 895 and dry field No. 1,010 and dry field No. 1,010 (number No. 2 omitted) of Chuncheon (hereinafter referred to as this case) originally owned by the Plaintiff, the Plaintiff borrowed KRW 100,000 from Non-party 1 on February 20, 1963 as the end of August 1964, and created a mortgage on the real estate as security for the obligation. Since the Plaintiff failed to perform its obligation by the due date, the amount of its obligation was 10,000,000 won as well as interest thereon was collected from the Plaintiff on September 1, 1964, and the amount was 150,000 won as to the above 40,000 won as to the above real estate, the Plaintiff transferred its obligation to the Defendant, who was the debtor, and sold its ownership to the Plaintiff on the same real estate to the non-party 1, 196.
If there is no dispute above, and the part of No. 1, which can be recognized by the testimony of Non-Party 1 by the witness of the court below, and the testimony of Dong and Dong, and the result of the examination of the plaintiff himself, are combined with the whole purport of the pleading,
1. As seen earlier, Nonparty 1 transferred the claim amount of KRW 150,00 to the Defendant by the Plaintiff, as a result of the transfer, was to achieve the economic purpose that Nonparty 1 was exempted from its own obligation as a result of performing the obligation of KRW 150,000 to be paid by the Plaintiff to the Defendant. In order to secure the performance of the Plaintiff’s obligation to the Defendant who is the assignee, Nonparty 1 did not take the procedure of transferring this mortgage to the Defendant prior to the transfer of the instant real estate in order to ensure the Defendant’s fulfillment of the obligation against the assignee, and the procedure was more simple and effective, and the name of the Plaintiff was transferred directly to the Defendant in order to establish a strong security right at the point of view. In that place, the Defendant confirmed that the Plaintiff returned the registration of the ownership of the instant real estate to the Plaintiff at any time by the 30th of September 1, 1964.
b. At the time when the defendant acquired the above registration name, the market price of the real estate as of September 1, 1964 was equivalent to 600,000 won, which is 4 times the amount of the above debt of the plaintiff's 150,000 won, which is 150,000 won, and the defendant actually sold the above 495,30 won to the non-party 2 on November 4 of the same year, which is 2 months after the acquisition of the above registration name;
3. From September 1, 1964 to 24, the Plaintiff offered 120,00 won per annum to the Defendant on the 4th day after the 1964.24 days after the 4th day of the above 1964. The Defendant stated that the balance will be paid 150,00 won per annum to the Plaintiff. The Defendant’s refusal to accept the above 150,00 won can be recognized respectively, and there is no evidence to believe that each part of the outcome of the examination of the Plaintiff and the Defendant did not go against the above 40th day of the above 10th day after the 196th day of the above 4th day after the 196th day of the above 10th day of the above 10th day of the above 4th day after the 196th day of the above 10th day of the above 10th day of the above 4th day of the above 10th day of the above 1st day of the above 30th day of the above 1st day of the sale agreement.
Judges Lee Jae-su (Presiding Judge)