[2] Whether the creditor who did not receive the distribution has the right to claim the return of unjust enrichment in case where the distribution was made in accordance with the distribution schedule established (affirmative)

[2] Since the execution of distribution according to the final distribution schedule does not confirm the right under substantive law, in case where a person who is liable to receive the distribution did not receive the distribution and received the distribution, a creditor who did not receive the distribution may claim a return of unjust enrichment against the person who received the distribution, regardless of whether he raised an objection to the distribution or whether the distribution procedure has been established in form

According to the reasoning of the judgment of the court below, the court below rejected the distribution of the proceeds of sale on August 17, 199 for the real estate owned by the debtor 1, and 135,691,575 won remaining after the execution expenses and senior creditors are distributed to the same fourth-order creditor, and 457,285,787 won for the claim of the Korea Mutual Saving and Finance Company (the defendant subsequently succeeded to all rights and obligations of the above Korea Mutual Savings and Finance Company; hereinafter referred to as the "defendant"), which is the provisional seizure creditor, and 25 million won for the claim of the non-party 2, who is the creditor entitled to demand distribution, and 35 million won for the claim of the non-party 3 and 40 million won for the claim of the plaintiff 4, and 500,000 won for the provisional seizure claim of the plaintiff 5,000 won for the damages claim of the above 1,500,000 won for the above provisional seizure claim of the plaintiff 1, which became final and 581,

2. The judgment of this Court

However, we cannot accept the judgment of the court below for the following reasons.

A. Article 589(2) of the former Civil Procedure Act (amended by Act No. 6626, Jan. 26, 2002; hereinafter the same) which applies mutatis mutandis to the voluntary auction procedure provides that "the amount of dividends of a claim subject to a condition precedent shall be deposited and paid or cultivated by the nature and nature of the condition," but Article 589(3) of the same Act provides that the amount of dividends, etc. to the provisional seizure creditor shall be deposited. However, there is no provision regarding the settlement of the deposit.

However, even if a court of execution established the amount of distribution for the non-determined claim of the provisional seizure creditor pursuant to the provisions of Article 589 (3) of the same Act and completed the distribution procedure without any objection as to the existence of the preserved claim from other creditors on the date of distribution, it cannot be readily concluded that the distribution procedure has been completed until the deposited dividends are paid to the deposited creditors, and it is substantially contrary to the purpose of the auction system to pay the dividends deposited to the debtor with the deposited dividends even though the deposited dividends have creditors who have failed to meet the creditor's satisfaction from the debtor's property, in cases where the execution of provisional seizure is revoked after the deposit of the amount of distribution for the provisional seizure creditor or where the provisional seizure creditor becomes final and conclusive against the lawsuit on the merits, it shall be interpreted that the deposited dividends should be distributed additionally to other creditors (see Supreme Court Decision 90Meu26072 delivered on January 29, 191), and the same applies to cases where the amount exceeds the amount determined by the provisional seizure creditor in favor of the deposited creditors.

B. On the other hand, in a case where a person who is liable to receive a distribution receives a distribution without receiving the distribution, because the execution of the distribution according to the finalized distribution schedule does not confirm the right 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, the creditor who did not receive the distribution may claim a return of unjust enrichment against the person who received the distribution, regardless of whether he raised an objection to the distribution or whether the distribution procedure has been established in form (Supreme Court Decision 8

C. Since the defendant, the provisional attachment creditor who deposited the amount of dividends in this case, obtained a final and conclusive judgment in favor of a part of the lawsuit on the merits, the court of execution should have paid only the adjusted amount out of the amount of dividends deposited again based on the amount in favor of the court of execution and paid the remainder to the defendant, who is another creditor, and as long as the court of execution did not reach this and paid the whole deposited amount to the defendant, the defendant has the obligation to return the difference between the amount actually paid and the adjusted amount of dividends based on the amount in favor of the court of execution as unjust enrichment to the plaintiffs.

Nevertheless, the judgment of the court below that the defendant received the full amount of the deposited amount based on the provisional seizure claim amount is justifiable, and there is an error of law by misunderstanding the legal principles as to additional dividends or unjust enrichment as to the amount of dividends deposited to the creditor of provisional seizure in the discretionary auction procedure under the former Civil Procedure Act, which affected the conclusion of the judgment. The ground of appeal pointing

3. Therefore, the judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Yong-dam (Presiding Justice)