[1] Where the mortgage contract was revoked by fraudulent act, but the auction procedure had already been conducted and the registration of creation of a neighboring mortgage was revoked, the specific method of restitution depending on whether the beneficiary's dividend was received, and where the creditor raises an objection to the portion of the beneficiary's dividend on the date of distribution, and then files a lawsuit of demurrer against distribution along with the revocation of fraudulent act, the method of revising the distribution schedule

[2] In a case where a creditor who won a lawsuit of demurrer against a distribution filed with the revocation of a fraudulent act and received a dividend in excess of the amount that he/she should receive by revising the distribution schedule, the other party to the duty to return the excess (=other creditors who lawfully received a demand for distribution, but failed to participate in the lawsuit of demurrer against

[1] In the event of cancelling a mortgage contract as a fraudulent act, if another person acquires ownership and the registration of creation of a neighboring mortgage was cancelled, it is impossible to return the original property. Therefore, in the event a beneficiary receives dividends due to the termination of the distribution, the beneficiary shall be ordered to return the dividends. In the event the distribution schedule became final and conclusive but the beneficiary was not actually paid dividends due to the creditor's provisional disposition prohibiting the payment of dividends, the beneficiary shall be ordered to notify the transfer of the dividend payment claim and the transfer of the claim. However, if the creditor was present on the date of distribution and raised an objection against the part of the beneficiary's dividends, the creditor may file a lawsuit of revocation of fraudulent act and bring an action of demurrer against the distribution as its restoration. In this case, the court shall cancel the mortgage contract only to the extent that the creditor's claims have not been satisfied without considering the existence of other creditors than the relevant creditor who filed a lawsuit of demurrer against distribution, and only if so, correct the dividend amount as the creditor's dividend amount.

[2] The execution of distribution pursuant to the final distribution schedule does not become final and conclusive pursuant to the substantive law. Therefore, in case where a creditor who is liable to receive 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 did not receive the distribution, regardless of whether or not he raised an objection to the distribution, and the creditor who did not receive the distribution is a general creditor or who did not receive the distribution, and the rectification of the distribution schedule by winning the lawsuit of demurrer to the distribution is not different by a judgment of revocation of fraudulent act. In this case, the creditor who received the distribution in excess of the amount he has received through the lawsuit of demurrer to the distribution has the obligation to return the excess portion as unjust enrichment to other creditors who did not participate in the lawsuit of demurrer to the distribution,

[1] Article 406(1) of the Civil Act; Articles 151, 154, and 157 of the Civil Execution Act / [2] Articles 406(1) and 741 of the Civil Act; Articles 151, 154, and 157 of the Civil Execution Act

[1] Supreme Court Decision 97Da8687 delivered on October 10, 1997 (Gong1997Ha, 3420), Supreme Court Decision 2000Da44348 delivered on February 27, 2001 (Gong2001Sang, 774) Supreme Court Decision 2003Da6200 delivered on January 27, 2004 (Gong2004Sang, 434) / [2] Supreme Court Decision 2003Da32681 Delivered on April 9, 2004 (Gong204Da39546 delivered on February 9, 207) (Gong2007Sang, 433).

Korea Credit Guarantee Fund (Law Firm Jeong, Attorneys Lee Dong-mun et al., Counsel for the defendant-appellant)

Han Bank Co., Ltd. (Law Firm Won, Attorneys Kang Tae-hwan et al., Counsel for the plaintiff-appellant)

Seoul High Court Decision 2010Na49375 decided October 14, 2010

The appeal is dismissed. The costs of appeal are assessed against the defendant.

We examine the grounds of appeal.

In the event that a mortgage contract is cancelled as a fraudulent act, if another person acquires ownership and the registration of creation of a mortgage was cancelled, it is impossible to return the original property. Thus, in case where a beneficiary receives dividends due to the termination of dividends, the beneficiary shall order the return of dividends. In case where the beneficiary fails to receive dividends in reality due to the provisional disposition prohibiting the payment of dividends even though the distribution schedule became final and conclusive, the beneficiary shall order the transfer of the dividend payment claim and the notification of the transfer of the claim. However, in case where the creditor was present on the date of distribution and raised an objection against the part of the beneficiary's dividends, the creditor may file a lawsuit of revocation of fraudulent act and file a lawsuit of demurrer against distribution as restitution. In this case, the court may cancel the mortgage contract only to the extent that the creditor's claims are not satisfied without considering the existence of other creditors than the relevant creditor who filed a lawsuit of demurrer against distribution, and only delete the amount of dividends to the extent that the creditor's dividends to the same extent and correct it as the amount of dividends of the creditor (see, e.g., Supreme Court Decision 2003Da6200).

However, since the execution of dividends pursuant to the final and conclusive distribution schedule does not constitute a confirmation of substantive rights, in case where a creditor who is liable to receive dividends has received dividends without receiving dividends, a creditor who has not received dividends is entitled to a claim for return of unjust enrichment against a person who has received dividends, regardless of whether he/she raised an objection to the dividends, and the creditor who has not received dividends is a general creditor or who has not received dividends is determined by a revocation judgment of a fraudulent act, which does not change on the ground that the correction of the distribution schedule is made by winning the lawsuit of demurrer against distribution (see, e.g., Supreme Court Decisions 2006Da39546, Feb. 9, 2007; 2006Da21538, Feb. 22, 2007).

At this time, a creditor who received dividends in excess of the amount that he/she has to receive through a lawsuit of demurrer against distribution has a duty to return the excess portion as unjust enrichment to another creditor who did not participate in the lawsuit of demurrer against distribution, but has no obligation to return it to the debtor who made a fraudulent act.

Examining the reasoning of the judgment below in light of the above legal principles and the records, the amount distributed to the Export-Import Bank of Korea which has been established as a fraudulent act is the amount to be distributed among other creditors who have received a demand for distribution in the auction procedure. The defendant who received the dividend amount in excess of his/her proportional distribution amount after filing a lawsuit of demurrer against distribution, which constitutes a case where a non-right holder received the distribution and received the distribution schedule, and only constitutes a case where the non-right holder received the distribution, and has the obligation to return the dividend amount to the plaintiff who is the remaining creditor, is not obligated to return

The Supreme Court Decision 2007Da37837 Decided June 12, 2008 cited in the ground of appeal is related to a case where the auction procedure for real estate has not been commenced, and where the scope of creditors entitled to receive distribution of the amount distributed to the right to collateral security established by fraudulent act is limited after the auction procedure is commenced as in the case of this case, the above precedents cannot be applied.

The court below did not err in the misapprehension of legal principles as to obligee's right of revocation, objection to distribution, and return of unjust enrichment.

Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Jeon Soo-ahn (Presiding Justice)