[전부금][공1991.1.15.(888),226]
In case where a person who has no right in the auction procedure receives a distribution, but fails to deliver a national tax bond which takes precedence over the claim of the applicant for a compulsory auction due to the shortage of auction price, whether the person who has received the unjust distribution has the obligation to return unjust
If a person who has no right to receive dividends has received dividends in the auction procedure, this would be deemed to have made unjust enrichment without any legal cause, but even if there is a person who would have received dividends if the dividends had not been erroneous, and there is a person who could receive dividends in the following order of priority, it shall not be deemed to belong to the offerer (owner of the object of auction). Thus, even if the defendant is a person who received dividends without the right to receive the money in the auction procedure, if the defendant is a person who received dividends without the right to receive the money, but if the national tax claim adjustment which takes precedence over the claim of the person who applied for compulsory auction fails to deliver the money due to a shortage of auction proceeds,
Article 741 of the Civil Act, Article 652 of the Civil Procedure Act
Attorney Park Young-chul, Inc., Counsel for the defendant-appellant
Monogenesis
Seoul High Court Decision 90Na143 delivered on July 27, 1990
The appeal is dismissed.
The costs of appeal are assessed against the plaintiff.
We examine the grounds of appeal.
On the first ground for appeal
According to the contents of Gap evidence 6-20 (written claim for delivery) without dispute over the establishment of the court below, the tax requested by the director of the tax office to be issued at the auction procedure at issue in this case shall be 273,464,290 won including the national tax amount of 237,768,030 won, additional dues of 35,696,260 won.
Therefore, if the third amount among the tax claims of the subordinate director of the tax office is KRW 16,697,290, such as the evidence No. 21 (the certificate of successful bid price issuance), the remaining amount is KRW 256,767,00.
Therefore, the court below cannot be deemed to have recognized that the amount of national tax claims of the subordinate director of the tax office, which is the sixth priority without evidence, is KRW 256,767,00. Therefore, the grounds for appeal are without merit.
On the second ground for appeal
If a person who has no right to receive dividends in the auction procedure received dividends, this would be deemed to have made unjust enrichment without any legal ground. However, the person who has suffered damages would have been entitled to dividends if the dividends were not erroneous, and even if there was a person entitled to receive dividends in the following order, such dividends shall not be deemed to belong to the said person (owner of the object of auction).
Therefore, in this case where the court below, based on such opinion, received dividends without the authority of the defendant to receive money as alleged by the plaintiff in this case, the plaintiff's claim that takes precedence over the plaintiff's claim for compulsory auction is not delivered as a shortage of auction price, and there is no legal principle that the debtor and the owner of the object of auction bears the obligation to return it to the non-party Gangnam Passenger Co., Ltd., which is the owner of the object of auction, and the reason why the plaintiff cannot be deemed to have suffered any loss is justified
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-ju (Presiding Justice)