부당이득소송에서 청구적격은 배당절차에서 배당이 잘못되지 않았더라면 배당을 받을 수 있었던 사람임[국승]
Eligible for a claim in a lawsuit for unjust enrichment is a person who could have received dividends if the dividends were not erroneously paid in the distribution procedure.
If a non-right-holder received dividends in the distribution procedure, this would be deemed to have made unjust enrichment without any legal cause, or the person who has suffered damages therefrom would not be deemed to have reverted to the debtor even if there is a person who would have been entitled to receive dividends if the dividends had not been mistakenly made, or if there is a person entitled to receive the dividends in the
Article 56 of the National Tax Collection Act
2011Return of unjust enrichment by 15585
Han AA et al.
Korea
August 29, 2012
September 19, 2012
1. All of the plaintiffs' claims are dismissed.
2. The costs of lawsuit are assessed against the plaintiffs.
The defendant shall pay to the plaintiffs 00 won with 20% interest per annum from the day after the delivery of a copy of the complaint of this case to the day of complete payment.
1. Basic facts
A. On March 12, 2008, the Plaintiff and Korea EE, who were their children, respectively, have succeeded to one-third shares of each of the following: (a) the OO 000 square meters in the Jeju-si, Kimhae-si and the cement brick bedle 74.85 square meters in each of the above real property (hereinafter collectively referred to as the “instant real property”) was originally owned by hulD; (b) yellowD died on March 12, 2008; and (c) the Plaintiffs and Korea E, who were their children.
B. On December 24, 2004, with respect to the real estate in the instant case, the mortgage was established in the name of the O community credit cooperative in the name of the Plaintiff Han-A and the highest credit amount of the debtor at KRW 000,000, but the auction procedure of real estate was initiated in the Changwon District Court around 1077 at the request of the O community creditr.
C. On June 17, 2009, the defendant-affiliated Kim Jong-Un's disposition of delinquency in payment of national taxes, etc. of the EE, which was attached to the portion of the real estate of this case, and on November 8, 2010, the above auction procedure requested the payment of KRW 000 in total,00,000 in global income tax and nine delinquent taxes.
D. During the above auction procedure on November 24, 2010, a court of execution prepared a distribution schedule to distribute the amount of KRW 00 to the Defendant, who is a seizure authority, and the amount of KRW 00,00,00 to the O community credit cooperative, who is a collateral mortgagee, in the third order.
[Ground for Recognition: Facts without dispute, and entry in Gap 1 through 3, and Eul 1 through 3 (including natural disasters, and hereinafter the same shall apply)]
2. Judgment on the plaintiffs' assertion
A. The plaintiffs' assertion
(1) Although the defendant had a national tax claim against E, it is unreasonable that the defendant received a dividend from the successful bid price of the real estate of this case where E and E jointly inherits 1/3 shares of each of the plaintiffs.
(2) As to the instant real estate, inasmuch as the right to collateral security was established in the name of the OE Community on the date of YD possession, the bid price of the instant real estate should be preferentially distributed to the said mortgagee, and from the balance, it should be distributed to the Defendant, who is the creditor of E, one of the successors, and it is unreasonable for the Defendant to pay dividends in preference to the above mortgagee.
(3) Therefore, the defendant is obligated to return to the plaintiffs the amount equivalent to 2/3 of the paid money which the defendant received to the plaintiffs as unjust enrichment.
B. Determination
(1) First of all, according to the statements on whether the Defendant received preferential dividends from the total auction price of the instant real estate, and evidence Nos. 1 and 2, in the above auction procedure, it is recognized that the executing court distributed dividends to the Defendant only on the basis of 000 won (00 won X1/3), which is the amount equivalent to the portion of the KE out of the actual dividends in the above auction procedure, and on the other premise, the argument on the part of Paragraph A (1) of the above Article is without merit.
(2) Next, Article 35 of the Framework Act on National Taxes provides that it is unreasonable that the Defendant, a creditor of the heir, has received preferential payment of the right to collateral security established before the inheritance, prior to the statutory due date, and Article 35 of the Framework Act on National Taxes provides that national tax claims shall take precedence over claims secured by the right to collateral security established after the statutory due date, but the above provisions shall be interpreted as a provision that is based on the obligor’s liability for tax payment based on the relationship with the mortgagee at the time of the establishment of the mortgage (see, e.g., Supreme Court Decision 94Da11835, Apr. 7, 1995). Even if the statutory due date of the national tax claims against the heir takes precedence over the date of the establishment of the right to collateral security established by the predecessor, it is reasonable to view that the obligor cannot receive preferential payment from the auction price of the inherited movable property. However, if a non-right person has received dividends in the distribution procedure, it would be deemed that the Plaintiffs would have received unjust enrichment without any legal ground, or that the Plaintiffs would not have received dividends from the obligor (see 200.
3. Conclusion
Then, the plaintiffs' claims are dismissed as it is without merit. It is so decided as per Disposition.