[2] In a case where a non-right holder receives dividends in the distribution procedure, whether the unjust enrichment is established (affirmative), and the subject to whom the right to claim a return of unjust enrichment

[3] The case holding that the attachment and assignment order is null and void on the ground that the attachment and assignment order against the third party debtor under the attachment and assignment order does not exist, in case where the attachment and assignment order was issued as if the claimant Eul was the debtor and Eul was the third party debtor, and the third party debtor was the claimant Eul, and the attachment and assignment order was made as if the debtor was Gap

[2] If a person who did not have a right in the distribution procedure received dividends, this would be deemed to have made unjust enrichment without any legal ground, but the person who suffered damages therefrom shall not be deemed to have reverted to the debtor even in cases where the person who would have received dividends if the dividends were not erroneous, or where there was a person entitled to receive the dividends of the next priority.

[3] The case holding that the attachment and assignment order is null and void on the ground that the attachment and assignment order against the third party debtor under the attachment and assignment order does not exist, in case where the attachment and assignment order was issued as if the claimant Eul was the debtor and Eul was the third party debtor, and the third party debtor was the claimant Eul, and the attachment and assignment order was made as if the debtor was Gap

1. As to the misapprehension of legal principles as to the attribution of dividend amount and the right to claim restitution of unjust enrichment

In a case where a person who is liable to receive a distribution receives a distribution without receiving the distribution, because it is not to confirm the rights under the substantive law, and in a case where a person who is liable to receive the distribution receives the distribution without receiving the distribution, he/she shall have the right to claim the return of unjust enrichment against the preferential creditor who did not receive the distribution, regardless of whether the objection has been raised to the distribution or whether the procedure for the distribution has become final and conclusive (see, e.g., Supreme Court Decision 86Meu2949, Nov. 8, 198). If a person who does not have the right in the distribution procedure received the distribution, he/she shall be deemed to have made a unjust enrichment without any legal ground, but the person who suffered loss shall not be deemed to have been entitled to the distribution if he/she would have received the distribution if he/she did not have mistakenly made the distribution, and it shall not be deemed that the distribution belongs to the debtor even if there

According to the records, in the distribution procedure of Daejeon District Court 97ta-2113, the wage and retirement allowance claims against the non-party Seo-gun Co., Ltd. (hereinafter referred to as "non-party Seo-won") on the date of distribution were excluded from the distribution, the plaintiff and the designated parties (hereinafter referred to as "the plaintiff") were deposited in the amount of KRW 62,545,790, which was demanded by the defendant as a national tax claim against the non-party Seo-won's non-party's non-party's non-party's non-party's non-party's non-party's non-party's non-party's non-party's non-party's non-party's non-party's non-party's non-party's non-party's non-party's non-party's non-party's non-party's non-party's non-party's non-party's non-party's non-party's non-party's non-party's distribution procedure.

If the facts are as above, the defendant received the amount equivalent to the delinquent national tax claim distributed to the defendant in accordance with the above distribution schedule from the non-party Seo-won, and thereby the defendant made unjust enrichment of the defendant's right to claim the payment of deposit amount of KRW 62,545,790. However, the person who suffered damage due to the above unjust enrichment by the defendant is not the non-party Seo-won's debtor but the defendant's following order due to the distribution of the above money in the above distribution procedure. Thus, the non-party Seo-won is not entitled to claim the return of the above unjust enrichment against the defendant. The judgment of the court below is just, and there is no error in the misapprehension of legal principles as to the reversion of the amount of dividends and the right to claim the return of unjust enrichment. The precedents cited in the grounds of appeal are not appropriate in this case.

2. As to the misapprehension of legal principle as to the full payment

According to the reasoning of the judgment below, the court below adopted evidence and concluded mediation between the plaintiffs and the non-party 3's non-party 63,676,995 won on January 27, 1997. Upon filing a lawsuit of demurrer against the above distribution, the court of execution deposited the above amount of KRW 62,545,790 which was distributed to the defendant under the distribution schedule, but the plaintiffs' appeal against the judgment of the court of first instance against the above lawsuit of demurrer against the above amount of KRW 62,545,790 was revoked by the defendant's right to claim payment of the above amount of KRW 62,545,790 on October 26, 1998. The Daejeon District Court dismissed the above claim against the defendant as the obligor and the non-party 3's obligor under the jurisdiction of the defendant as the third-party 6's claim for seizure order, and the defendant's claim for seizure against the above amount of KRW 63,570 as the obligor's claim for seizure order against the above amount of KRW 97136.

In light of the records, the fact-finding and decision of the court below is just, and there is no error of law by misunderstanding the legal principles of the full amount of the appeal.

3. As to the mistake of facts against the rules of evidence

The plaintiff alleged in the grounds of appeal that the court below erred by misunderstanding the facts against the rules of evidence that the plaintiff lost the lawsuit of demurrer against the defendant et al. against the plaintiff and withdrawn the appeal against the defendant, and that the court below did not exist the wages and retirement allowance claims against the non-party Seo-won did not exist. However, since the judgment below did not recognize the facts as alleged above, the above assertion cannot be accepted.

4. Therefore, the appeal is dismissed and all 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 Zwon (Presiding Justice)