The defendant shall pay to the plaintiff 989,224,454 won and 989,089,333 won among them, 6% per annum from June 30, 2016 to October 31, 2017, and 15% per annum from the next day to the date of full payment.

2. The defendant's remaining appeal is dismissed.

3. 1/10 out of the total costs of the lawsuit shall be borne by the Plaintiff, 9/10 by the Defendant.

The defendant shall pay to the plaintiff 1,087,106,121 won with 5% interest per annum from February 3, 2016 to the service date of a copy of the complaint of this case, and 15% interest per annum from the next day to the day of complete payment.

【Purpose of Appeal】

The part against the defendant in the judgment of the first instance is revoked, and the plaintiff's claim corresponding to the revocation is dismissed.

The court's reasoning for this part is as follows: "Defendant 1 was merged with Korea Exchange Bank (Korea Exchange Bank, September 1, 2015)" of 2nd 13th 13th e.g., "Korea Exchange Bank (hereinafter "Defendant")," "14 billion won" of 2nd 14th e.g., "15, 16th e., owned by the plaintiff or 16th e.g., "6th 16th e.g., 7th 7th e., 2014" of 3th e.g., "No. 9th 6th e.g., 16th e., 7th e., 2014" of 3th e.g., "No. 16th e., 2014" and "No. 16th 3th e.g., 106th e., 2014" of 3th e.

2. Determination on the cause of the claim

According to the above facts, the instant auction procedure was suspended on November 27, 2014 and December 5, 2014, prior to the date of distribution, pursuant to the general prohibition order in the instant rehabilitation procedure and the instant rehabilitation order, and was invalidated by the instant rehabilitation plan approval order on June 17, 2015. The Defendant, on February 3, 2016, paid the instant deposit in the position of the creditor entitled to receive the distribution of the instant auction procedure as of February 3, 2016.

Thus, the defendant's receipt of the amount equivalent to the proceeds from the sale of real estate owned by the plaintiff out of the deposit money of this case is based on an invalid enforcement act, and thus, the defendant is obligated to return to the plaintiff the amount equivalent to the proceeds from the sale of real estate owned by the plaintiff out of the deposit money of this case as unjust enrichment (see Supreme Court Decision 2005Da71710, Jul. 13,

3. Judgment on the defendant's assertion

A. As to the assertion that the instant auction procedure is not suspended or invalidated

(1) The Defendant asserts that the rehabilitation security right is a compulsory execution based on the rehabilitation security right, and that the rehabilitation security right is a claim secured by the mortgage existing in the debtor’s property at the time of commencement of rehabilitation procedures. In this case, the real estate of this case was not owned by the Plaintiff and the mortgage of this case did not exist after the final extinction of the mortgage of this case. Thus, the Defendant asserts that the instant claim cannot be deemed a rehabilitation security right under the Debtor Rehabilitation Act, and therefore, the auction procedure of this case shall not be suspended or invalidated.

(2) Article 45(3) of the Debtor Rehabilitation Act provides that "when a general prohibition order is issued, compulsory execution based on any rehabilitation claim or rehabilitation security right that has already been enforced against the debtor's property shall be suspended." Article 58(2)2 of the same Act provides that "when a decision is made to commence rehabilitation procedures, compulsory execution based on any rehabilitation claim or rehabilitation security right that has already been made against the debtor's property shall be suspended." Meanwhile, the main text of Article 141(1) provides that "any property claim against any person other than the debtor who has arisen due to any rehabilitation claim or rehabilitation claim or any rehabilitation claim or any rehabilitation security right that exists on the debtor's property at the time of the commencement of rehabilitation procedures, the scope of which is secured by any lien, pledge, mortgage, security right, provisional registration right, security right

(3) Considering comprehensively taking account of the circumstances seen in paragraphs (4) and (5) above, it is reasonable to view that the mortgage is also included in the rehabilitation security right under the main sentence of Article 141(1) of the Debtor Rehabilitation Act, since the mortgage is secured by the mortgage established on the real estate owned by the debtor, as seen in the instant claim, and the proceeds from the auction procedure for the real estate were paid in full, and the mortgage is extinguished, but the dividends have not been completed at the time the rehabilitation procedure commenced. Therefore, the prior Defendant’s

(4) The Defendant’s assertion on the ground that the instant claim does not constitute a rehabilitation security right is that the obligor shall lose ownership of real estate if the proceeds from sale are paid in full, and the proceeds from sale shall not belong to the obligor, and the mortgage shall be extinguished in full due to the payment of the proceeds from sale, and the previous mortgagee shall have the right to receive dividends pursuant to the “Effect of Demand for Distribution”. Ultimately, the Defendant shall be deemed not to have secured the instant claim any longer at the time of commencement of the rehabilitation procedure, which is after the payment

According to Article 135 of the Civil Execution Act, the purchaser at the auction procedure acquired the ownership of the sold real estate when he completely pays the sale price, and the mortgage established on the sold real estate by selecting the extinction principle as to this mortgage under Article 91(2) of the Civil Execution Act shall be extinguished by the full payment of the sale price.

However, a mortgage means the right to obtain preferential repayment from the mortgaged subject matter (Article 356 of the Civil Act). The preferential repayment means the realization of the mortgaged subject matter to obtain satisfaction of the secured claim prior to other creditors. In other words, a mortgage is not itself a right which controls the exchange value of the mortgaged subject matter, but a right which exercises the exchange value of the mortgaged subject matter in an auction procedure, which is the realization procedure of the mortgaged subject matter, and obtains preferential repayment of the secured claim from the creditors (see Supreme Court Decision 2005Da3243, Apr. 29, 2005). Therefore, the realization of the mortgaged subject matter and the acquisition of exchange value therefrom are parts of the realization procedure of the right with the original mortgage. Therefore, even if ownership of the mortgaged subject matter is transferred to the purchaser in the process of realizing the mortgaged subject matter, and even if a mortgage is extinguished to acquire a burden, the creditor of the mortgaged subject matter still has the effect of preferential repayment in the procedure of sale of the mortgaged subject matter, such as the sale price of the mortgaged subject matter, in the original auction procedure.

In the case of this case, the sales price was paid at the auction procedure of this case, but the distribution schedule was not confirmed since the date of distribution was not yet established at the time of the commencement of the rehabilitation procedure of this case. At the time of the commencement of the rehabilitation procedure of this case, the defendant, the creditor of this case, was in a position to assert preferential repayment based on the right to collateral security of this case concerning the sales price of this case, and therefore, the claim of this case was secured by

(5) The issue of whether the instant claim constitutes a rehabilitation security right under the Debtor Rehabilitation Act is the issue of whether the proceeds from the sale of mortgaged real estate was paid in full at the auction procedure, but the dividends were not completed until the commencement of the rehabilitation procedure, the proceeds from the sale of mortgaged real estate can be delivered to the custodian, and whether the obligee can individually obtain satisfaction of the claim by participating in the rehabilitation procedure and exercising the rights within the procedure or from the

However, under the Debtor Rehabilitation Act, an order may be issued to suspend compulsory execution based on a rehabilitation claim or rehabilitation security right even before a decision to commence rehabilitation procedures is rendered (Article 44(1)); when there are special circumstances deemed that such order might not sufficiently achieve the purpose of rehabilitation procedures due to such order (Article 45(1)); when a comprehensive prohibition order is issued, compulsory execution based on a rehabilitation claim or rehabilitation security right already takes place on the debtor’s property is suspended (Article 45(3)); when a decision is rendered on commencement of rehabilitation procedures, compulsory execution based on a rehabilitation claim or rehabilitation security right already takes place on the debtor’s property is suspended (Article 58(2)); when a decision is made on commencement of rehabilitation procedures, compulsory execution based on a rehabilitation claim or rehabilitation security right is invalidated (Article 256(1)). In addition, any act of repayment, repayment, repayment, etc. without following the rehabilitation plan after the commencement of rehabilitation procedures as prescribed in the rehabilitation plan is prohibited (Article 131(1) main sentence and Article 141(2)2)). Meanwhile, the grounds for the reduction of the debtor’s right or rehabilitation security right’s becoming effective.

In the auction procedure for mortgaged real estate, where the proceeds from sale were paid in full, but the dividends were not completed until the commencement of the rehabilitation procedure, the proceeds from sale of mortgaged real estate itself as at the time of the commencement of the rehabilitation procedure remains as the debtor's property that can be offered for the rehabilitation of the debtor. Meanwhile, as long as dividends are not completed, the secured claim remains without extinguishing the debtor's property at the time of the commencement of the rehabilitation procedure. As such, if the creditor who has mortgaged real estate receives dividends from the auction procedure, the secured claim shall not be

Therefore, in such a case, it is more consistent with the above legislative intent of the Debtor Rehabilitation Act, which seeks the success of rehabilitation through fair distribution among creditors or the preservation of the debtor's property, by allowing creditors with mortgage rights to complete the individual act of realizing rights in the auction procedure and providing proceeds for rehabilitation procedures and having creditors repay in accordance with the rehabilitation plan like other rehabilitation creditors or rehabilitation secured creditors.

B. As to the assertion that the Plaintiff’s claim of this case cannot be permitted against the good faith principle

(1) The defendant, who was the representative director and manager of the plaintiff, committed the act of this case on the premise that the claims of this case are not rehabilitation security rights and are attributed to the defendant, and the rehabilitation court also conducted the rehabilitation plan of this case on the premise that they belong to the defendant, and the defendant trusted this decision and received the deposit of this case without reporting the claims of this case as rehabilitation security rights. Thus, if the non-party 2 did not state the claims of this case on the list of rehabilitation secured creditors, and did not state the claims of this case on the list of rehabilitation secured creditors, the plaintiff's claim of this case at the latest after the completion of rehabilitation procedures

(2) According to the overall purport of Gap evidence Nos. 8, 9, Eul evidence Nos. 11-4, Eul evidence Nos. 12 and 16 and the whole purport of the pleadings, the plaintiff's application for commencing rehabilitation procedures, ① does not reflect the real estate of this case or the deposit money of this case in the plaintiff's assets, and Nonparty 2 did not state the real estate of this case or the deposit money of this case in the plaintiff's assets. The plaintiff's rehabilitation plan was not included in the plaintiff's assets or financial resources, ② The real estate of this case or the deposit money of this case was not included in the plaintiff's assets, ② The claims of this case are not listed in the rehabilitation secured creditor list prepared by the plaintiff's administrator, but are not reflected in the rehabilitation secured creditor list. ③ The non-party 3, who was the plaintiff's employee, was presumed to have extinguished the debt of this case with the proceeds of sale in full with the defendant's dialogue, and did not recognize that the real estate of this case and the debt of this case were not recorded in the rehabilitation secured creditor list.

(3) However, in light of the following circumstances, Gap evidence Nos. 4, 5, 9, 10, Eul evidence Nos. 1, 1, 4-1-1, Eul evidence Nos. 15, 16-1, and Eul evidence Nos. 15, and 11-1, Eul evidence Nos. 15, 16-1, and the purport of the testimony and the whole pleadings of the witness Non-Party No. 2 of the party trial, the facts acknowledged in the above Paragraph (2) and the evidence presented by the defendant alone are insufficient to recognize that the plaintiff and non-party No. 2 granted the defendant a trust that the claims of this case against the defendant are not rehabilitation security rights, but the claims of this case belong to the defendant, or that the defendant did not report the claims

① Since the instant real estate was already sold before the commencement of the instant rehabilitation procedure and was transferred to a third party, even if the Plaintiff’s real estate among the instant real estate was not reflected in the Plaintiff’s assets at the time of application for commencement of rehabilitation procedures or the rehabilitation plan, it merely indicates the original ownership relationship, and it is difficult to view that the Plaintiff expressed any position in relation

② On the ground that the deposit of this case was not stated or stated in the Plaintiff’s assets at the time of the commencement of the rehabilitation procedure, Nonparty 2 testified that the legal relationship on the reversion of the deposit of this case was not clear, and that the deposit of this case was not an asset recorded in the account book. Nonparty 3 also testified that, considering that Nonparty 2, not a legal expert, did not make it impossible to determine as above, it is difficult to conclude that Nonparty 2 recognized that the deposit of this case belongs to the Defendant, solely from the circumstance that the deposit of this case was not reflected in the Plaintiff’s assets at the time of the commencement of the rehabilitation procedure or the rehabilitation plan, etc., the Plaintiff recognized that the deposit of this case belongs to the Defendant.

③ The Plaintiff’s rehabilitation plan does not exclude only the instant deposit, but only the acquisition price through capital increase with consideration, etc., as the source of repayment. As such, there was no room for stating the instant deposit as the source of repayment.

④ Inasmuch as the Plaintiff’s custodian did not enter the instant claim on the list of rehabilitation secured creditors, it cannot be readily concluded that the instant claim does not necessarily constitute rehabilitation security rights, or that the Plaintiff’s custodian recognized that the instant claim is the Defendant.

In addition, the reason for imposing the duty to prepare and submit a list of rehabilitation creditors is to prevent any disadvantage in forfeiture of rights by failing to report the claims due to the lack of knowledge about the rehabilitation procedure by the rehabilitation creditors. However, since the Defendant was aware of the commencement of the rehabilitation procedure of this case, such as examining the Plaintiff’s application for commencement of the rehabilitation procedure before the commencement of the rehabilitation procedure of this case was already delivered, even if Nonparty 2 violated his/her duty by failing to enter the instant claims on the list of rehabilitation secured creditors, it cannot be deemed as an inevitable circumstance.

⑤ Nonparty 3 said, in the above dialogue with the Defendant, “I think that the employee in charge of the time would do so,” “I think that it would be the employee in charge of the time, but it is not clear whether the statement set forth in paragraph (2)(3) above was based on objective facts or based on his personal abstract or idea, even if I think that the successful bid price is paid in full at this point of the Real Estate Act.”

(6) On December 16, 2014, immediately after the commencement of the instant rehabilitation procedure, the Plaintiff filed an application with the court of execution for the suspension of execution of the instant auction procedure on the grounds that there was a commencement of the instant rehabilitation procedure. Around June 2015, the Defendant refused to affix a seal to the document prepared and issued under the name of the Plaintiff stating that “the instant claim does not constitute rehabilitation security rights and should belong to the Defendant,” and that “the instant deposit should belong to the Defendant.”

7) Even according to the Defendant’s assertion, the Defendant’s employees’ speech that the Defendant would make to the maximum extent possible help Nonparty 2 and Nonparty 3 receive the instant deposit. Therefore, it cannot be said that the Defendant did not report the rehabilitation security right regarding the instant claim by trusting his attitude.

8) Even if the defendant's assertion is asserted, the rehabilitation court did not permit the submission of the documents under the above paragraph (6) prepared by the defendant to the rehabilitation procedure of this case. Thus, the rehabilitation court cannot be deemed to have issued the rehabilitation plan approval order of this case on the premise that the claim of this case is not a rehabilitation security right

C. As to the other argument

(1) The defendant asserts that, even if the auction procedure of this case should have been suspended by the decision of commencement of rehabilitation of this case, since the court of execution did not suspend it and proceed with the distribution procedure as it is, the distribution procedure cannot be deemed null and void. However, the suspension of compulsory execution by the decision of commencement of rehabilitation procedure is naturally effective under the provisions of the Debtor Rehabilitation Act, and the execution in violation of this decision is null and void.

(2) The defendant asserts that even if the defendant reported the claim of this case as rehabilitation security right, it is clear that he would have received the full amount of the deposit of this case. Thus, since there is no difference between the defendant's receipt of the deposit of this case and the repayment of the deposit of this case as rehabilitation secured creditor, it cannot be deemed that the plaintiff suffered losses or the defendant suffered unjust profits due to the defendant's receipt of the deposit of this case. However, the defendant did not report the claim of this case as rehabilitation security right, and the claim of this case was not included in the rehabilitation plan. The defendant'

(3) The Defendant asserts that the instant deposit was received by exercising the right to claim dividend payments against Korea, and that the exemption effect under Article 251 of the Debtor Rehabilitation Act does not affect the Defendant’s exercise of the right against a third party, and thus, the Defendant’s receipt of the instant deposit cannot be deemed as lacking legal grounds.

However, the reason why the Defendant is liable to return unjust enrichment to the Plaintiff is not because the Defendant lost the right to receive the instant deposit due to the forfeiture of rights, but that the Defendant received the instant deposit by an invalid enforcement act. Therefore, the circumstances as alleged above do not affect the conclusion. Moreover, the distribution schedule was not finalized since the date of distribution was prior to the commencement of the rehabilitation procedure at the time of the commencement of the rehabilitation procedure at issue, and the subsequent distribution procedure was in violation of the suspension of compulsory execution pursuant to the instant order for the commencement of rehabilitation, and thus, is null and void. Therefore, the Defendant’s right to claim for dividend payment is not established, and thus

(4) The Defendant acknowledged the return of unjust enrichment based on the principle of fairness and justice. If the instant claim is accepted, the Defendant could not be repaid due to the forfeiture of rights, while the Plaintiff could be exempted from liability for the instant claim. The Defendant asserts that the receipt of the instant deposit money does not constitute unjust enrichment, since it does not go against the principle of fairness and justice even if the Defendant admitted the status of holding the instant deposit money, and thus, the Defendant’s receipt of the instant deposit money does not constitute unjust enrichment. However, just based on the circumstance alleged above by the Defendant, it cannot be said that the Defendant’s receipt of the instant deposit money without any legal ground and did not cause damage to the Plaintiff. Accordingly, the Defendant’s assertion

(5) In light of Article 50(3), etc. of the Civil Execution Rule, the Defendant asserts that in the reference document submitted after the closing of argument, a comprehensive prohibition order or suspension of enforcement pursuant to the instant rehabilitation decision does not extend to the auction procedure in the instant case where the said decision was made in full.

However, in principle, the suspension of compulsory execution may be carried out prior to the completion of compulsory execution as a whole, and in the case of an auction on real estate, when the distribution of proceeds from the sale is completed, and in the case of an auction on real estate, when a comprehensive prohibition order is issued or a decision is rendered to commence a rehabilitation procedure under Articles 45(3) and 58(2) of the Debtor Rehabilitation Act, there is no time limit provision like Article 50(3) of the Civil Execution Rule. Therefore, inasmuch as the distribution was not completed at the time of the commencement of the rehabilitation procedure, it is reasonable to view that the auction procedure of this case is suspended by the comprehensive prohibition order in the rehabilitation procedure of this case under the Debtor Rehabilitation Act and the decision to commence the rehabilitation procedure of this case under the rehabilitation plan of this case, and it is null and void by the decision to suspend the auction procedure of this case under the former Company Reorganization Act. The purport of the Defendant’s assertion that the order to suspend the auction procedure of this case is not effective under the former Company Reorganization Act.

4. Conclusion

Therefore, the defendant is obligated to return to the plaintiff KRW 989,224,454 [1] ① amount equivalent to the proceeds from the sale of real estate owned by the plaintiff out of the deposit of this case. It shall be calculated by deducting "amount equivalent to the proceeds from the sale of real estate owned by the plaintiff out of the actual dividends" from the deposit of this case as the defendant claims against the plaintiff. 9,089,089,333 won shall be calculated by deducting the "amount equivalent to the proceeds from the sale of real estate owned by the plaintiff out of the actual dividends" from 1,087,106,121 won from the deposit of this case. 98,016,788 won (i.e., the amount to be actually distributed 1,71,091 x 19,616,000 won x 36% of the total appraisal of real estate owned by the non-party 1 x 30% of the total amount to be paid to the plaintiff during the period of 19,39989,13989% of the complaint of this case.

Therefore, the plaintiff's claim shall be accepted within the scope of the above recognition and the remaining claims shall be dismissed as without merit. Since the judgment of the court of first instance is unfair with a different conclusion, the part against the defendant who ordered payment exceeding the above amount among the judgment of the court of first instance shall be revoked, and all of the plaintiff's claim corresponding to the revocation part and the defendant's remaining appeal shall be dismissed. It

Judges Park Young-young (Presiding Judge)