(영문) 의정부지방법원고양지원 2016.11.25 2016가단20384

부당이득금 등


1. The Defendant’s KRW 42,262,569 as well as the Plaintiff’s annual rate of 5% from September 3, 2016 to November 25, 2016, and the following.


1. Basic facts

A. A. Around November 5, 2009, Spanish Co., Ltd. was registered as the ownership of “665 square meters of forests and fields B in Gyeonggi-gun (hereinafter “the instant forest”)”.

B. On November 30, 2010, C filed a registration of the right to claim transfer of ownership on the ground of a pre-sale agreement as of November 17, 2010 with respect to the instant forest land, which was the object of the said provisional registration, and D thereafter registered as the owner upon transfer of ownership on April 6, 2012.

C. Around August 2014, the Defendant filed an application for the commencement of compulsory auction of the instant forest land (the aforementioned court E) with the Suwon District Court located in the branch court of the Suwon District Court on the basis of the confirmed claim against D, and the auction procedure was initiated according to the above court’s decision to commence compulsory auction.

The Plaintiff paid KRW 44,100,000 as the highest price buyer in the above auction procedure, and completed the registration of ownership transfer concerning the instant forest on August 28, 2015.

E. Meanwhile, the above execution court prepared a distribution schedule containing the content of distributing the amount of KRW 42,262,569 among the amount of actual dividends (the remaining amount after deducting the amount of delinquent taxes, etc.) to the defendant. The above distribution schedule became final and conclusive and the defendant received the above money.

F. However, on January 7, 2016, C, who was the person entitled to provisional registration of the instant forest, transferred the right to provisional registration to F on January 7, 2016, and thereafter F, on January 11, 2016 based on the transferred provisional registration, completed the registration of ownership transfer of the instant forest land on January 11, 2016, thereby losing the Plaintiff’s ownership of the said forest land upon ex officio cancellation.

【Ground for Recognition: Facts without dispute, Gap evidence 1, Eul evidence 1, Eul evidence 1, 2, and 3, the purport of the whole pleadings

2. The gist of the Plaintiff’s assertion is to cancel the sales contract for the forest of this case between D and the Plaintiff following the above auction procedure (the grounds for impossibility of performance).

D is insolvent, and the defendant is paid dividends to the plaintiff in accordance with Article 578(2) of the Civil Code.