부당이득금반환
1. Revocation of a judgment of the first instance;
2. The plaintiff's claim is dismissed.
3. All costs of the lawsuit shall be borne by the Plaintiff.
1. The parties' assertion
A. On November 19, 2009, Plaintiff 1 issued a provisional attachment order with respect to Plaintiff 1’s loan claim amounting to KRW 60 million, and on November 19, 2009, issued a provisional attachment order with respect to Plaintiff 301, Dong-gu, Seocheon-gu, Seocheon-gu (hereinafter “instant real estate”). However, during the compulsory auction procedure for the instant real estate, the distribution court drafted a distribution schedule by erroneously stating the Plaintiff’s amount of credit amount of KRW 60 million, not KRW 60 million, but KRW 6 million.
3) As a result, the Plaintiff should have received dividends of KRW 18,60,891, but failed to receive dividends of KRW 3,477,604. The Defendant received only dividends of KRW 16,250,724, but received dividends of KRW 30,382,191. Accordingly, the Defendant is obligated to return the excess dividends of KRW 14,131,467 (=30,382,191 – KRW 16,250,724) and damages for delay.
B. The Plaintiff’s loans worth KRW 60 million against Defendant C did not exist, and the Defendant had registered provisional seizure for false claims on the ground that the Defendant may enforce compulsory execution against Defendant C’s her husband’s property.
2. Whether the Plaintiff’s loan claim against C exists
A. The execution of distribution pursuant to the final and conclusive distribution schedule does not mean the confirmation of the right under substantive law. In a 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 if he did not receive the distribution, regardless of whether he raised an objection to the distribution (see Supreme Court Decision 9Da26948, Mar. 13, 2001). In this case, if the creditor who received the distribution denies the existence of the creditor's own claim that did not receive 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 (see
Supreme Court Decision 201No. 12.7. 12.