[부당이득금][공2004.4.1.(199),538]
In a case where multiple items are put up a single distribution schedule upon a blanket auction, but the creditor of each sales price and the creditor of each sales price are different in the order of distribution, whether a senior creditor who did not receive dividends may file a claim for the return of distribution or unjust enrichment against the above subordinate creditor even if the amount received by the creditor of each sales price is within the scope of his/her right in the distribution procedure (affirmative)
Even in cases of a blanket auction of several items, the distribution procedure is basically different from the case of an individual auction, so even if the distribution schedule was formulated as a single part of the distribution schedule, it is limited to the sum of the dividends for each item by creditors. In such cases, in cases where a senior creditor who has the right to receive dividends from one of them, in preference to other creditors, receives dividends instead of receiving dividends, the senior creditor may make a claim for objection against, or a claim for return of unjust enrichment against, the junior creditor, and as a result, the relationship where the junior creditor was entitled to receive dividends from the proceeds from the sale of other items, it is not different from the total sum of the junior creditor’s dividends.
Article 741 of the Civil Act, Articles 145, 150, 151, and 155 of the Civil Execution Act
[Plaintiff-Appellant] Plaintiff 1 and 1 other (Law Firm Domin, Attorneys Park Jong-soo et al., Counsel for plaintiff-appellant)
Hyundai Embs Co., Ltd. (formerly: Hyundai Embs., Ltd., Ltd.) (Law Firm No., Counsel for defendant-appellant)
Korea Exchange Bank, Inc.
Korea Asset Management Corporation (Attorney Sung-chul, Counsel for defendant-appellant)
Seoul High Court Decision 2001Na56234 delivered on February 12, 2003
From June 28, 1999 to May 31, 2003, the part of the judgment of the court below against the defendant, which exceeds the amount of 5% per annum from June 28, 1999 to May 31, 2003, and from the next day to the full payment day, the part of the judgment of the court of first instance is reversed, and the plaintiff's claim corresponding thereto is dismissed. The part of the judgment of the court of first instance concerning damages for delay as to 19,703,512 won is about 19,703,512 won, from June 28, 1999 to May 31, 2003, and the part of the judgment against the defendant exceeding the amount of 20% per annum from the next day to the full payment day is reversed, and the plaintiff's appeal corresponding thereto is dismissed. The remainder of the appeal by the defendant joining the defendant is dismissed. The part concerning the part concerning the total expenses for participation in the lawsuit shall be borne by the defendant, respectively.
1. According to the reasoning of the judgment below, the court below rejected the defendant's allegation that the non-party 1, who had engaged in plastic products manufacturing business with the trade name "○○○○○○○○○, paid the total of KRW 140,90,000 as the purchase price of KRW 181,50,000 for the HD-650 SPPF (hereinafter referred to as "the machinery of this case") from the plaintiff around June 3, 1994 through "the cooperation industry for non-party 2's management, which is the sales agent of the plaintiff's sales agent, and rejected the defendant's allegation that the non-party 2,50,000,000 won was paid for the 3333,000,000 won as the down payment at the time of the contract, and the remaining 40,600,000 won was paid for the machinery of this case as the counter-party 260,000 won.
In light of the records, we affirm the fact-finding and judgment of the court below as just, and there is no error of law by misunderstanding facts against the rules of evidence.
2. Even if multiple items are collectively sold, the distribution procedure is basically different from the case of individual auction, so even if the distribution schedule was prepared as one of the items, it is merely limited to the sum total by each creditor of each item. In a case where a senior creditor who has the right to receive dividends from one of the items is paid dividends in preference to other creditors instead of receiving dividends, the senior creditor may make a claim for objection against the junior creditor or a claim for return of unjust enrichment against the junior creditor. The senior creditor, as the junior creditor, is not different from the fact that there was no difference in the total sum of dividends paid by the junior creditor (see Supreme Court Decision 2001Da66291, Sept. 5, 2003).
The court below rejected the defendant's claim for return of unjust enrichment within the scope of 40,491,376 won that the defendant received as dividends from the proceeds of the sale of the machinery of this case, and even if the defendant did not have the right to receive dividends from the proceeds of the sale of the machinery of this case, the defendant can receive dividends of KRW 19,445,06 out of the proceeds of the sale of one type of other type of type of type of type of type of type of type of type of type of type of type of type of type of type of type of type of type of type of type of type of type of type of type of type of type of type of type of type of type of type of type of type of type of type of type of type of type of type of
3. However, ex officio, the portion of "interest rate prescribed by Presidential Decree" in the main sentence of Article 3 (1) of the Act on Special Cases concerning the Promotion, etc. of Legal Proceedings (amended by Act No. 6868 of May 10, 2003) was decided as unconstitutional by the Constitutional Court on April 24, 2003, and the above revised legal provision and the statutory interest rate in the main sentence of Article 3 (1) of the Act on Special Cases concerning the Promotion, etc. of Legal Proceedings (amended by Presidential Decree No. 17981 of May 29, 2003) shall be 20% per annum for cases pending in the court at the time of the enforcement of the above amended Act. Thus, the court below erred by applying the above legal interest rate per annum until May 31, 2003, which is the date of the enforcement of the above Act, and by applying the above revised interest rate per annum to delay damages from the date of the amendment to June 25, 2003.
4. Therefore, among the part of the judgment of the court below as to delay damages, the part against the defendant in excess of the amount of 5% per annum from June 28, 1999 to May 31, 2003 with respect to 20,787,864 won as cited by the court of first instance, and the part against the defendant in excess of the amount of 20% per annum from the next day to the date of full payment, and the part against the defendant in excess of the amount of 19,703,512 won as cited by the court below, from June 28, 1999 to May 31, 2003, and from the next day to the date of full payment, the part against the defendant in excess of the amount of 20% per annum. The part of the judgment of the court of first instance as to the acceptance of the above part of the judgment of the court of first instance shall be revoked, and the remaining part of the plaintiff's appeal shall be dismissed as per Disposition by the assent of the court below.
Justices Yoon Jae-chul (Presiding Justice)