2. The plaintiff's claim is dismissed.

3. All costs of the lawsuit shall be borne by the Plaintiff.

The defendant shall pay to the plaintiff 200,000,000 won with 5% per annum from March 21, 2002 to the first instance judgment, and 20% per annum from the next day to the day of full payment.

2. Purport of appeal

The judgment of the first instance is revoked. The plaintiff's claim is dismissed.

A. On March 11, 1999, the Plaintiff was set up a right to collateral security with respect to the share of the Doldong, Jongno-gu Seoul Metropolitan Government ○○○-dong, 448-○ and three lots of ground (hereinafter “instant building”) on the part of Nonparty 1 and Doldong, Jongno-gu, Seoul, with a single/2 share of Nonparty 1/2.

B. With respect to the instant building and its site, ○○○-dong, Seoul, 448-○○-dong, 342.8 square meters (hereinafter “○○-dong, 448-○”) 447-dong, 59.5 square meters in ○○-dong, 447-dong, 447- dong, 70.7 square meters in ○○-dong, 447-10 square meters in ○○-dong, 447-10 square meters (hereinafter “instant auction procedure”) and 41 square meters in ○○-dong, Seoul, ○○○-dong, Seoul, ○○○-dong, 447-8 and 2 land; hereinafter “○○○-dong, 447-8 et al.”), various proposals for compulsory auction and voluntary auction were initiated on October 13, 1997 (hereinafter “instant auction procedure”).

C. On March 21, 2002, 202, 2,528,872,688 of the amount to be actually distributed after deducting KRW 26,778,05,00 from the date of distribution of the auction procedure of this case, 2,55,650,738 of the amount to be distributed, 2,528,872,688 of the amount to be actually distributed, and 701,77,353 won to ○○○○○ Credit Co., Ltd. (hereinafter referred to as “○○○○○○”), a creditor, and 21,236,730 won, 30 won, and 104,312,180 won, 4 of the amount to be distributed, and 650,700,74 of the amount to be distributed to ○○○○○○, a creditor, to be distributed to ○○○○○, a person holding the right to collective security (hereinafter referred to as “○○○○”).

D. Meanwhile, the claim of KRW 2,411,982,510, which was claimed by the head of ○○○○ Tax Office to issue a gift tax in the 7th order in the instant auction procedure, was based on the reason that “the ○○○○○○○○-dong 448-○ land was trusted in title to the ○○○○ Government for the purpose of tax avoidance,” and the imposition of KRW 850,629,610, and the disposition was made based on the joint and several tax liability of the donor for the gift tax on the ○○○○○-dong 448-○’s land for the purpose of tax avoidance, and the said disposition was revoked on November 4, 2003, which was after the said auction procedure was completed.

E. The list is as indicated below among interested parties on the land ○○○-dong 448-6, ○○-6, ○○-dong 447-○, and 2, and each of the above land and buildings (hereinafter collectively referred to as “each of the above land and buildings”) (the Plaintiff did not have a right to the land ○○-dong 448-○ and 447-○-dong 447-2, and the lower-ranking interested parties of each of the above land are not related to the Plaintiff’s assertion, and the lower-ranking parties of each of the above land are not indicated. There is no dispute between the parties as to the fact that each of the above claims is extinguished prior to the date of distribution of this case, and thus, each of the above claims is not indicated as interested parties, and the taxation claim of Jongno-gu Office does not indicate the dividend amount only to the extent necessary to determine the Plaintiff’s assertion, and omitted the indication of the corporation subsequent to

[Ground of recognition] In the absence of dispute, Gap evidence 1 through 6, Gap evidence 7-1 through 4, Eul evidence 8 through 10, Eul evidence 2 and 3, Eul evidence 30-1 through 3, Eul evidence 30-1 through 3-4, the Jongno-gu Office of Jongno-gu of this court, and the result of each inquiry into the director of the tax office, the purport of the whole pleadings.

2. The assertion and judgment

A. The plaintiff's assertion

As the disposition of imposing gift tax, which is the cause of a dividend to the head of ○○○ Tax Office under the Defendant’s control, was revoked, the Defendant received dividends of KRW 744,589,376 in the instant auction procedure, without any legal ground. As such, the Plaintiff suffered damages equivalent to KRW 200 million, which would have been able to receive dividends from the said auction procedure if the Plaintiff did not receive dividends from the head of ○○ Tax Office, and thus, the Defendant shall pay the Plaintiff the said amount as unjust enrichment return.

B. Determination as to the plaintiff's damage

(1) According to the above facts, as the disposition imposing gift tax was revoked, which became a source of a dividend to the head of ○○○ Tax Office, Defendant (○○○○ Tax Office) received dividends of KRW 744,589,376 without any legal source, even though there was no source of entitlement to receive a dividend in the auction procedure of this case. Accordingly, the creditors who could have received a dividend in the above auction procedure would have suffered losses equivalent to the amount that ○○○○ Tax Office could have received, and the creditors who could have received a dividend in the above auction procedure would not have confirmed their rights under substantive law. Thus, in cases where a creditor who did not receive a dividend and could not receive a dividend receives a dividend receives a dividend, the creditors who did not receive the dividend would have the right to claim a return of unjust enrichment against the person who received the dividend even if they did not raise an objection to the dividend (see, e.g., Supreme Court Decisions 2006Da49130, Mar. 29, 2008).

Therefore, we will examine whether the Plaintiff could receive dividends in the auction procedure of this case in the absence of dividends from the ○○○ Head of the tax office.

(2) The actual amount of dividends for each real estate of this case

In case where several sites and buildings are put up for a blanket auction, a right holder for a site should receive dividends from the proceeds from the sale of a site, and from the proceeds from the sale of a building, a right holder for a building should receive dividends from the proceeds from the sale of a building. Therefore, in case of a blanket auction of a site and a building, if creditors and claims entitled to dividends from the proceeds from the sale of each real estate are different, each of the proceeds from the sale of each real estate are divided into the so-called individual distribution foundation, and then a distribution schedule is prepared for each of the proceeds. Even if a distribution schedule for the site and buildings was prepared as one of the proceeds in practice, it is only prepared by adding up the distribution schedule for the proceeds from the sale of the site and the proceeds from the sale of each of the creditors' dividends for the proceeds from the sale of the building. Accordingly, examining the amount to be actually distributed by each of the real estate of this case (the total amount to be distributed 】 (the total amount

(3) Whether the ○○○○ Credit received dividends from the proceeds from the sale of the land at ○○dong 448-dong

(A) In light of the overall purport of the pleadings, the following circumstances are recognized.

1) KRW 701,774,678, which is the amount to be actually distributed to ○○○○-dong 448-○ land, and KRW 701,777,353, which is the amount to be distributed in the instant auction procedure, are almost the same amount.

2) ○○○○여신의 ○○동 448-○ 토지의 1순위 근저당권자임과 동시에 이 사건 건물의 가압류권자인바, 이 사건 배당 당시 이 사건 건물에 관하여는 ① 각 근저당권에 앞서 ○○○○여신의 가압류, ② 각 근저당권, ③ 근저당권보다 후순위읜 피고(○○○세무서)의 조세채권이 있어서 '배당순위의 모순저촉에 따른 특수흡수배당'이 발생하는 상황{즉, ① 가압류의 입장에는 ② 근저당권과의 관계에서는 평등한 반면 ③ 조세에 대한 관계에서는 후순위이고, ③ 조세의 입장에서는 ① 가압류보다는 선순위이나 ② 근저당권보다는 후순위로서 서로 상호 순위가 모순되는 관계에 있었고, 이 경우 가 채권자의 채권액을 기초로 먼저 안분배당한 후, 각 자기보다 후순위권리자의 배당액을 자기채권이 만족할 때까지 흡수시켜 배당하여야 함(대법원 1994.11.29.자 94마417결정)}이었으므로, ① 가압류채권은 ③ 피고의 조세채권에 모두 흡수되었던 것으로 보인다.

3) In the auction procedure of this case, the list of interested parties (Evidence A No. 1-3) prepared by the auction court is indicated in the list of interested parties (the certificate No. 1-3) as well as the list of interested parties, which read “in the case of a proposal, the gift tax shall not be levied on the said document.”

(B) In light of the above-mentioned circumstances, it is reasonable to deem that ○○○○ Credit received the entire amount of money to be distributed to the said land in the position of the first mortgagee on ○○○-dong 448-○-dong 448-○○, and that it did not receive dividends in the instant building.

(4) Distribution of dividends on the instant building

As seen above, Defendant (○○○○ Tax Office) received dividends of KRW 744,589,376 from the proceeds from the sale of the building of this case, not from ○○○-dong 448-○○-dong 448-○○-dong 448-○, but from the proceeds of the sale of the building of this case, and it will examine whether the

(A) Distribution order of the instant building

According to the above facts, the order of distributing dividends among interested parties to the building of this case is as follows.

(B) Distribution of dividends to creditors of the third or lower order of the shares of the ○○ day of the instant building

1) In the distribution relationship between the creditors of the preceding provisional attachment, the mortgagee of the right (or the mortgagee) and the creditors of the provisional attachment higher than the mortgagee, inasmuch as the mortgagee cannot assert preferential payment right against the creditors of the provisional attachment before the date of the right, all the creditors should have received equal distribution according to the proportional distribution in proportion to the amount of the first claim, and the mortgagee should deduct the amount of the first divided distribution among the junior creditors of the provisional attachment or junior mortgagee until the satisfy of his/her own claim. If there are several junior creditors, the creditors should be absorption from the subordinate creditors first, and if there are several junior creditors, the merger should be made between the creditors first, and the subordinate creditors are in the same order, so the ratio of the amount of the claim calculated by absorption should be determined in proportion to the amount of the auction price of each real estate in accordance with Article 368(1) of the Civil Act (i.e., the secured claim of the joint mortgage should be apportioned to each real estate in proportion to the amount of the remaining claims to each joint mortgagee and then the amount of the joint mortgagee should be apportioned.

2) Of the instant building, 738,310,054 won, which is the actual amount to be distributed to the ○○○ day among the instant buildings, is as seen earlier. Of these, 21,236,730 won, 6,285,270 won, which is the first priority in payment to Jongno-gu, the second priority in payment. As such, 710,78,054 won (=738,310,054 - 21,236,730 won - 6,285,270 won), which is the amount to be distributed to the creditors of the third priority in payment, is 710,78,05,000 won in proportion to the amount of each claim. If ○○○ Credit is distributed in proportion to the amount of each claim, the amount to be distributed to the creditors of the third priority in payment in proportion to the amount of claim, the amount in proportion to the amount distributed to the 110,7888,054 won in attached table.

3) Next, in the case of the Korea ○○○ Management Corporation, which is a joint mortgagee on the ○○○○○○-dong and 447-8 and 2 land among the instant buildings, the amount allocated to the secured debt of the Korea ○○○ Management Corporation out of the amount to be distributed to the ○○○○-dong and 447-8 and 2, 458,29 (the auction price) is KRW 451,79 (the first apportioned amount due to the provisional attachment of the ○○○○○-dong, which was earlier than the Korea ○○ Management Corporation, was 64,15,79 won, Korea ○○-dong and the first apportioned amount due to the provisional attachment of the ○○○○○○-dong and ○○○○-dong, and the auction price apportioned to the Korea ○○○○ Management Corporation is 458,291,799 won, 290, 304, 290, 3294, 3290, 4290

Examining the amount of dividends for KRW 650,00,00, which is a secured claim within the scope of the maximum debt amount of the Korean ○○ Management Corporation’s mortgage, the amount of dividends for KRW 650,000 [382,50,000 + 650,000 + 458,291,79/(320,424,922 + 458,291,7999) out of the instant building [320,424,922 + 458,2999)] is the amount of the share of KRW 267,460,80 [=650,000 + 320,000 + 320,420,422/420,425, 291, 2979] of each of the instant real property owned by each of the said real property. The said shares are the total amount of shares to be borne by the Korean ○○ Management Corporation up to 3636475,7060,70.

4) Next, within the scope of KRW 100,00,000 of the claim amount, 00,000 among the instant buildings, ○○○○ Credit and the Korea ○○ Management Corporation distributed KRW 75,752,60, which remains after being distributed to ○○○ Credit and the Korea ○○ Management Corporation.

5) Ultimately, the amount of dividends to creditors below the third order of the shares of the ○○ Day among the instant buildings is recorded in the final dividends column of the attached Table 1.

(C) Of the instant building, dividends to creditors with the second priority or lower of the shares in the literary affairs of the instant building

1) Of the instant building, the amount to be actually distributed out of 738,310,054 won is as seen earlier, and 67,973,930 won among them is to be distributed in ○○○, a first-order, ○○, the first-order, 200,336,124 won (=738,310,054-67,973,930 won), which is to be distributed to creditors below the second-order, is equal to the above 670,336,124 won in proportion to the amount of each claim. If the above 670,36,124 won is distributed in proportion to the amount of each claim, it is equal to the statement in the first-class distribution column of attached Table 2. The first-class, more than the ○○, the first-class, the right holder of a provisional attachment is all the same, and there is no absorption or absorption with the ○○, a collective security.

2) The mortgagee of the right to collateral security (right to collateral security) may absorb all the amount distributed to the mortgagee, mortgagee, and mortgagee, etc. within the scope of KRW 328,00,000 of the amount of his/her credit. If all the amounts are absorption, the amount distributed to the ○○○○○ would be KRW 134,920,229 ( KRW 58,770,030 + KRW 76,150,196).

3) Ultimately, among the buildings of this case, the details of final dividends to creditors below the second order of the shares in the literature of this case are as shown in the column of "final dividends" in attached Table 2.

(5) Sub-decisions

Therefore, even if ○○○ Tax Office did not distribute dividends, the Plaintiff could not receive dividends at all at the auction procedure of this case. Therefore, the Plaintiff’s assertion on the premise that the Plaintiff could have received dividends is without merit.

Conclusion

Therefore, the plaintiff's claim of this case is dismissed due to the lack of reason, and the judgment of the court of first instance, which has different conclusions, is unfair, and it is so decided as per Disposition with the cancellation of the plaintiff's claim.