Yellow School Housing Development Cooperatives (Attorney Go Young-gu, Counsel for the plaintiff-appellant)

Industrial Bank of Korea (Law Firm Spah, Attorneys Kim Jae-hwan, Counsel for plaintiff-appellant)

March 20, 2008

Seoul Central District Court Decision 2006Gahap40886 Decided April 11, 2007

1. The part against the defendant in the judgment of the first instance shall be revoked;

2. The plaintiff's claim as to the above revoked part is dismissed.

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

1. Purport of claim

The defendant shall pay to the plaintiff 459,615,519 won and 400,000,000 won among them, 59,615,519 won with 5% per annum from May 20, 2004 to the service date of a copy of the complaint of this case, and 20% per annum from the next day to the day of complete payment.

2. Purport of appeal

The same shall apply to the order.

1. Facts of recognition;

The reason why a member should explain this part is as stated in Article 420 of the Civil Procedure Act, in addition to the fact that the part of the judgment of the court of first instance, “Defendant 1” and “Defendant 2,” respectively, are deemed to be “joint Defendant 1 of the court of first instance” and “joint Defendant 2 of the court of first instance,” and therefore, this part of the judgment of the court of first instance is identical to that of Article 420

2. The plaintiff's assertion and the judgment of party members

The plaintiff asserts to the effect that the first deposit in the court of first instance, which was made by the co-defendant 2, who is not the owner of the real estate of this case, was null and void, and that the defendant paid the first deposit in the court of first instance, and the withdrawal of the first deposit in the court of first instance was made without any legal ground upon null and void deposit. Therefore, the defendant is obligated to return the

However, in the case of the expropriation of real estate, if public project operators deposit the compensation with the owner of the real estate as at the time of the expropriation as the deposit, so even if public project operators deposited the compensation with the previous owner who is not the owner at the time of expropriation, if they deposit the compensation with the victim, it shall be deemed that public project operators under Article 65 of the former Land Expropriation Act [before the abolition by Law No. 6656 of February 4, 2002 (Enforcement from January 1, 2003 to January 1, 2003)] did not pay or deposit the compensation by the time of expropriation until the time of expropriation. Since the expropriation of real estate is subject to the payment of the compensation, the adjudication by the Land Tribunal shall be deemed null and void, and as long as public project operators did not pay or deposit the compensation by the time of expropriation, it shall be deemed that the adjudication has become null and void as it is effective.

Therefore, the adjudication of expropriation on February 16, 2002 by the local Land Expropriation Committee of the Seoul Special Metropolitan City on the real estate of this case was invalidated due to the lack of effective deposit until the expropriation time. The adjudication of correction by the local Land Expropriation Committee of April 20, 2002 and the adjudication of objection by the Central Land Expropriation Committee of October 22, 2002 should be null and void. The decision of expropriation and deposit by the plaintiff as the co-defendant 2 of the first instance court, who is not the co-defendant 1 of the first instance court, the owner of the real estate of this case at the time of expropriation and deposit, shall not be effective as compensation payment by the co-defendant 1 of the first instance court.

Therefore, in this case, co-defendant 2 of the first instance court, the deposited co-defendant 2 of the first instance court, even though the owner of the real estate in this case was not the owner of the real estate in this case, shall have the right to claim the return of unjust enrichment against the co-defendant 2 of the first instance court, since the deposit based on the deposit made by the defendant as the person who was the owner of the real estate in this case, was appropriated for his own obligation

However, as to whether the Defendant paid the above deposit money to the Plaintiff as unjust enrichment, the Defendant, the mortgagee of the real estate of this case, is paying the deposit money by acquiring the seizure and assignment order or collection order concerning the right to claim payment of deposit payment from co-defendant 2 of the first instance court as the exercise of subrogation right based on it, and as long as the Defendant has a valid right to collateral payment, it cannot be deemed that there was no legal cause in advance of deposit payment because it is the legal cause of the Defendant’s ownership. The Defendant’s possession of the deposit money from the execution of the right to collateral payment which was established on the real estate of this case is not affected by the judgment or deposit validity between the Plaintiff and the co-defendant 2 of the first instance court. Thus, just because the first deposit of this case has no effect as the compensation payment, it cannot be deemed that the Defendant exercised the right to claim payment without any authority. Ultimately, the Plaintiff’s error in the process of the Plaintiff’s adjudication and deposit management should not always be viewed as having received the payment of deposit money from the Defendant’s joint Defendant 2 and the other party in this case should not always comply with the principle (hereinafter.).

Therefore, the defendant is not obliged to return unjust enrichment to the plaintiff. Therefore, the plaintiff's argument is without merit.

3. Conclusion

Therefore, the plaintiff's claim of this case against the defendant is dismissed as it is without merit. Since the judgment of the court of first instance which partially different conclusions is unfair, the part against the defendant in the judgment of the court of first instance is revoked and the plaintiff's claim against that part is dismissed. It is so decided as per Disposition.

[Attachment List omitted]

Judges Kang Young-ho (Presiding Judge)