[부당이득금][미간행]
[1] Whether a general creditor who was excluded from a dividend distributed pursuant to a final and conclusive distribution schedule has the right to claim the return of unjust enrichment (affirmative)
[2] Whether a distribution creditor who is not a party to a lawsuit of demurrer against distribution may file a claim for return of unjust enrichment against other creditors who received distributions pursuant to the revised distribution schedule based on the judgment on a lawsuit of demurrer against distribution (affirmative)
[1] Article 741 of the Civil Act, Articles 148 and 256 of the Civil Execution Act / [2] Article 741 of the Civil Act, Articles 154 and 157 of the Civil Execution Act
[1] Supreme Court Decision 86Da2949 delivered on Nov. 8, 198 (Gong1988, 1522), Supreme Court Decision 99Da53230 delivered on Oct. 10, 200 (Gong2000Ha, 2299), Supreme Court Decision 99Da26948 delivered on Mar. 13, 2001 (Gong2001Sang, 863) / [2] Supreme Court Decision 98Da3818 delivered on May 22, 1998 (Gong198Ha, 172), Supreme Court Decision 2006Da39546 delivered on Feb. 9, 2007 (Gong207, 433)
Korea Technology Finance Corporation (Attorney Hwang Byung-sil, Counsel for defendant-appellant)
Korea Credit Guarantee Fund (Attorney Han-soo et al., Counsel for the defendant-appellant)
Seoul Western District Court Decision 2006Na931 Decided June 22, 2006
The judgment of the court below is reversed, and the case is remanded to the Seoul Western District Court Panel Division.
We examine the grounds of appeal.
Since the execution of distribution according to the finalized distribution schedule does not have to confirm the substantive rights, in case where a creditor who is liable to receive distribution fails to receive the distribution and receives the distribution, the creditor who did not receive the distribution has the right to claim the return of unjust enrichment against the person who received the distribution even if he did not receive the distribution, regardless of whether he raised an objection to the distribution (see Supreme Court Decisions 86Meu2949, Nov. 8, 1988; 99Da53230, Oct. 10, 200; 9Da53230, Oct. 10, 200; 9Da26948, Mar. 13, 2001).
Meanwhile, a lawsuit of demurrer against distribution is nothing more than resolving a dispute over the amount of dividends among creditors who are the opposing parties, and its judgment is effective only between creditors who are the parties to the lawsuit (see Supreme Court Decision 98Da3818, May 22, 1998). Therefore, the legal principles of the above precedents should be applied to cases where a claim for unjust enrichment is filed against other creditors who are not the parties to the lawsuit of demurrer against distribution on the ground that the creditors who are not the parties to the lawsuit of demurrer against distribution made a claim for unjust enrichment on the ground that the distribution obligee, who are not the parties to the lawsuit of demurrer against distribution,
Nevertheless, the court below rejected the plaintiff's claim for return of unjust enrichment of this case by determining that the legal principles of the above precedents cannot be applied to this case where the defendant who received distributions pursuant to the correction schedule based on the correction schedule based on the judgment of the lawsuit of demurrer against distribution cannot be applied. Thus, the court below erred in the interpretation contrary to the Supreme Court's precedents as to Article 741 of the Civil Act, which applies to the claim for return of unjust enrichment, and it is clear that the above illegality affected the judgment. The ground for appeal
Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.
Justices Ahn Dai-hee (Presiding Justice)