[부당이득금반환][공2002.3.15.(150),540]
[1] In a case where a distribution creditor who requires a demand for distribution under Article 605(1) of the Civil Procedure Act has the right to demand a preferential reimbursement under substantive law, but is excluded from the distribution because he/she did not make a legitimate demand for distribution, whether he/she may claim a return of unjust enrichment against the subordinate creditor who received the
[2] Whether a claim to return a small amount of deposit under the Housing Lease Protection Act constitutes a claim to demand a distribution under Article 605(1) of the Civil Procedure Act (affirmative)
[1] Unlike the cases of creditors entitled to receive a distribution as a matter of course, such as the provisional seizure creditor registered prior to the entry into force of the seizure, the mortgagee extinguished by the successful bid, and the person having registered prior to the entry into force of the seizure, a distribution creditor who requires a distribution under Article 605(1) of the Civil Procedure Act, may receive a distribution only if he/she makes a distribution by the auction date, and in cases where he/she fails to make a lawful distribution by the auction date, even if there exists a right to preferential payment under the substantive law, he/she cannot receive a distribution from the auction price. Thus, if such right to demand a distribution fails to make a lawful distribution, and the distribution has been made and confirmed by the distribution schedule as being excluded from the distribution, and the distribution has been made in accordance with the finalized distribution schedule, the amount equivalent to the amount that could have been received a distribution shall not be deemed to have been distributed to junior creditors
[2] Claims for return of small-sum deposits by small-sum tenants who are entitled to preferential reimbursement under the Housing Lease Protection Act are claims for demand for distribution under Article 605(1) of the Civil Procedure Act.
[1] Article 605 (1) of the Civil Procedure Act, Article 741 of the Civil Act / [2] Article 605 (1) of the Civil Procedure Act, Article 8 (1) of the Housing Lease Protection Act
[1] Supreme Court Decision 95Da28304 delivered on December 20, 1996 (Gong1997Sang, 342), Supreme Court Decision 96Da10263 delivered on February 25, 1997 (Gong1997Sang, 865), Supreme Court Decision 98Da12379 delivered on October 13, 1998 (Gong1998Ha, 260)
Plaintiff
Yangsan Agricultural Cooperatives
Ulsan District Court Decision 2001Na703 delivered on September 27, 2001
The appeal is dismissed. The costs of appeal are assessed against the plaintiff.
We examine the grounds of appeal.
Unlike the cases of creditors entitled to receive a distribution as a matter of course, such as the provisional seizure creditor registered prior to the entry into force of the seizure, the mortgagee extinguished by the auction, and the person having registered prior to the entry into force of the seizure, the creditor entitled to receive a distribution, who requires a distribution under Article 605(1) of the Civil Procedure Act, may receive a distribution only if he/she makes a distribution by the auction date. In cases where he/she fails to make a lawful distribution by the auction date, even if there exists a right right to preferential payment under substantive law, he/she cannot receive a distribution from the auction price. Thus, if such right to demand a distribution fails to make a lawful distribution, and the distribution has been made in accordance with the final distribution schedule, it cannot be deemed that there is no legal ground, on the ground that the amount equivalent to the amount that could have been received a distribution has been distributed to junior creditors (see Supreme Court Decision 98Da12379, Oct. 13, 198).
The judgment of the court below to the same purport is justifiable, since a small-sum claim for the return of a small-sum deposit by a lessee who is entitled to preferential reimbursement under the Housing Lease Protection Act constitutes a claim for demand for distribution under the current law, and there is no violation of law in violation of judicial precedents. Supreme Court Decision 63Da839 Decided July 14, 1964; Supreme Court Decision 90Da315, 322, 339 Decided March 27, 190; Supreme Court Decision 90Da315, 329 Decided March 27, 1990; Supreme Court Decision 74Ma314 Decided December 30, 1975; Supreme Court Decision 75Da884 Decided January 13, 1976; Supreme Court Decision 78Da1689 Decided February 27, 1979; Supreme Court Decision 2007Da9789 Decided September 27, 1979; Supreme Court Decision 2008Da3167979 Decided the auction procedure under the Civil Procedure Act.
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 on the bench.
Justices Seo-sung (Presiding Justice)