2014Gazed 229767 Undue profit

A person shall be appointed.

Law Firm Number of Attorney Park Jae-soo

[Defendant-Appellee]

A person shall be appointed.

January 16, 2015

January 30, 2015

1. The defendant shall pay to the plaintiff 5,122,976 won with 5% interest per annum from November 27, 2014 to January 30, 2015, and 20% interest per annum from the next day to the day of the full payment.

2. The plaintiff's remaining claims are dismissed.

3. Of the costs of lawsuit, 90% is borne by the Plaintiff, and the remainder is borne by the Defendant, respectively.

4. Paragraph 1 can be provisionally executed.

The defendant shall pay to the plaintiff KRW 50,000,000 as well as to the plaintiff from the service date of a copy of the complaint until the sentencing date.

5% per annum and 20% per annum from the following day to the date of full payment.

1. Facts of recognition;

A. On January 21, 2009, XN Entertainment Group (hereinafter referred to as the “X Group”) filed a lawsuit against Y (hereinafter referred to as “Y”) to seek monetary payment from the Seoul Central District Court Decision 2008Gahap10797, which ordered the payment of 910,000,000 won from the Seoul Central District Court to X Group and 20% amount to Y from May 9, 2008 (hereinafter referred to as the “instant judgment”). The instant judgment became final and conclusive around that time.

B. Meanwhile, with respect to the above claim against Y, the X Group applied for provisional attachment of the claim against Y as Seoul Central District Court 2008Kadan6259, based on the principal amount of KRW 910,00,000 among the above claim against Y, and received a decision of citing it from the Seoul Central District Court. After the judgment of this case, the above provisional attachment order was transferred to the Seoul Central District Court 2010 Tadan23799, and the provisional attachment order was ordered to attach damages for delay of KRW 393,917,80 among the above claims against Y. 1,303,917,80 won ( = principal amount of KRW 910,00,000 + KRW 393,917,808) and the collection order was issued from the Seoul Central District Court.

C. Accordingly, on March 5, 2014, the Z overlaps with the seizure and collection order of the above claim against the Y on the ground that the seizure and collection order of the claim against the Z and the seizure and collection order of other claims, provisional seizure, assignment of claims, etc. are concurrent.

The principal and interest of the bonds up to the date of deposit of KRW 2,99, 412,828 with Busan District Court 515 in 2014.

D. Accordingly, on May 29, 2014, the Busan District Court distributed KRW 3,001, 328,28,289, and 2,032, 611, out of the total amount of KRW 3,001, 445, and 489, the execution cost of KRW 117,150, and KRW 289 to the creditors of the Republic of Korea as indicated in the following table of the distribution details (hereinafter “the dividend of this case”).

【Distribution Details】

E. On the other hand, on April 18, 2014, the Plaintiff acquired a claim based on the instant judgment against X group X group X-Y’s Y, and received the power of representation on the transfer notification, and notified Y of the acquisition of the said claim on the same day. Around that time, the Plaintiff received such notification to Y.

F. The Defendant lent 270,000,000 won to Y by deceiving Y and its representative director.

The plaintiff filed a complaint with N as a fraud, and the Busan District Court 2008Gahap16977 filed a lawsuit seeking joint repayment of the loan.

G. With respect to the above loan lawsuit between Y and N on April 16, 2009, the Defendant jointly and severally paid 190,000,000 won to the Defendant until April 17, 2009, and the delayed payment of Y and N shall be paid with the interest of 20% per annum from September 1, 2009 to the full payment of Y and the interest of N shall be adjusted to bear the costs of the lawsuit. (ii) On April 21, 2009, 50,000,000 won among Y and N shall be repaid, and (iii) the Defendant agreed to revoke the loan mediation at the same time with the loan settlement as the above Y and N, and (i) on the same date as the loan settlement was concluded.

H. Since then, the Defendant received 50,000,000 won from N in accordance with the above agreement on April 21, 2009, which was the transfer of the instant dividends, and withdrawn N’s accusation.

[Ground of recognition] Class A, 1 through 4, 7, 8, 10 through 13, 9-1 and 2, and the purport of the whole pleadings

2. Determination

A. Establishment of obligation to return unjust enrichment

According to the above facts, the defendant paid 50,000,000 won out of the agreed amount prior to the transfer of the dividends of this case and participated in the dividends in the total amount of KRW 140,00,00,000, excluding the repayment amount from the agreed amount, without participating in the dividends. The dividends paid 50,000,000 out of the agreed amount received from N out of the agreed amount are benefiting without any legal grounds, and thereby, thereby causing damage to the plaintiff who acquired the claim based on the judgment of this case against X Group Y. Thus, the defendant is obligated to return it to the plaintiff with unjust enrichment.

B. Furthermore, the scope of the obligation to return unjust enrichment (1) and the scope of unjust enrichment that the Defendant returned to the Plaintiff by means of health account, and the lawsuit of demurrer against distribution is to resolve disputes between creditors who become parties to a lawsuit that conflict with each other with respect to dividends, and the judgment becomes effective only among the creditors who are parties to the lawsuit, and the judgment is to change the ownership of the distribution portion that became the subject of dispute only among them. As such, in a case where it is recognized that the creditor’s claim does not exist, the claims of other creditors who did not raise an objection to the distribution in calculating the amount of dividends of the creditor who is the plaintiff need not be considered. The same applies to cases where other creditors who did not raise an objection to the distribution are creditors higher than the plaintiff (see, e.g., Supreme Court Decisions 200Da41844, Feb. 9, 200; 206Da49130, Mar. 29, 2007

However, in the case of a claim for return of unjust enrichment, even if the profit gained by the beneficiary exceeds the loss suffered by the creditor, the creditor can not claim the return of the excess portion against the beneficiary. Thus, in the case where the plaintiff seeking the return of unjust enrichment on the ground that he received dividends even though he did not receive dividends, it is reasonable to calculate the amount that the plaintiff could have received dividends in relation to other creditors as the amount of dividends of the plaintiff (i) out of the 50,00,000, the defendant received dividends to the plaintiff (ii) 1,303, 917, 808 won (ii) 12, 726, 173, 886 won, including the plaintiff, 200 won, 30% of the total amount of claims of the plaintiff, 200,000 won, 30% of the total amount of claims of the second-order creditors, 40% of the total amount of 12,726,173,186 won, 2005 won, 208.

3. Conclusion

Therefore, the plaintiff's claim is justified within the scope of the above recognition, and the remaining claims are dismissed as it is without merit. It is so decided as per Disposition.

Judge Go-man