[구상금등][공2007.3.15.(270),433]
[1] Whether a claim for return of unjust enrichment has been made to a general creditor who did not receive a distribution in a distribution schedule implemented by a final distribution schedule (affirmative)
[2] In a lawsuit of demurrer against distribution, in a case where the distribution creditor who received a distribution based on a final and conclusive judgment in favor of the said creditor did not have received a final and conclusive judgment against the said creditor, but also received the distribution, whether the said creditor who received a demand for distribution may file a claim for the return of unjust enrichment against the said creditor (affirmative)
[1] Since the execution of a distribution according to the confirmed distribution schedule does not confirm the right under substantive law, in case where the creditor who is liable to receive the distribution did not receive the distribution and received 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 though he did not receive the distribution, regardless of whether he raised an objection to the distribution, and the creditor who did not receive the distribution is the general creditor, not the other creditor
[2] Since a lawsuit of demurrer against distribution is merely a relative settlement of disputes between the opposing parties, its judgment is effective only against the parties to the lawsuit. As such, even in a case where a certain creditor has received a distribution in accordance with the distribution schedule revised by a final and conclusive judgment in favor of the parties in the lawsuit of demurrer against distribution, if the said distribution is deemed as a result of the receipt of the distribution even to the share to be received by the other distribution creditor, not the person who has been rendered a final and conclusive judgment in the lawsuit of demurrer against distribution, the other distribution creditor may file a claim for the return of unjust enrichment against the creditor who has received a distribution in accordance with the final and conclusive judgment in favor
[1] Article 741 of the Civil Act, Articles 148 and 256 of the Civil Execution Act / [2] Article 741 of the Civil Act, Articles 151 and 157 of the Civil Execution Act
[1] Supreme Court Decision 99Da26948 delivered on March 13, 2001 (Gong2001Sang, 863) Supreme Court Decision 2003Da32681 Delivered on April 9, 2004 (Gong2004Sang, 795)
Korea Technology Credit Guarantee Fund (Attorney Park Il-tae, Counsel for defendant-appellee)
The Korea Export Insurance Corporation (Attorney Han-soo et al., Counsel for defendant-appellee)
Daegu District Court Decision 2005Na14807 Decided May 24, 2006
The appeal is dismissed. The costs of appeal are assessed against the defendant.
The grounds of appeal are examined.
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 a distribution fails to receive a distribution and receives a 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, and the creditor who did not receive the distribution is not a general creditor (see, e.g., Supreme Court Decision 9Da26948, Mar. 13, 2001).
On the other hand, a lawsuit of demurrer against distribution is merely a relative settlement of disputes between the opposing parties, and its judgment is effective only against the parties to the lawsuit. As such, even in a case where a certain creditor has received a distribution in accordance with the distribution schedule revised by the final and conclusive judgment in favor of the parties in a lawsuit of demurrer against distribution, if the said distribution is deemed as the result of the receipt of the distribution even to the portion to be distributed by the other distribution creditor, who is not the person who has received the final and conclusive judgment in the lawsuit of demurrer against distribution, the other distribution creditor may file a claim for return of unjust enrichment against the creditor who received the distribution in accordance with the final and conclusive judgment in favor
The judgment of the court below to the same purport is just, and there is no error in the misapprehension of legal principles as to unjust enrichment and objection to distribution as alleged in the grounds of
The Supreme Court precedents cited in the grounds of appeal are different cases and cannot be invoked in this case.
Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.
Justices Park Si-hwan (Presiding Justice)