Plaintiff (Attorney Lee Dong-soo, Counsel for the plaintiff-appellant)

Defendant 1 and one other

January 9, 2008

Seoul Northern District Court Decision 2006Da46640 Decided June 27, 2007

1. In accordance with the expansion of the purport of the claim made by the Plaintiff against Defendant 1 in the trial, Paragraph 1 of the judgment of the first instance shall be amended as follows.

Defendant 1 shall pay to the Plaintiff 39,789,726 won and 35,00,000 won among them with 2.5% interest per month from March 16, 2006 to the day of full payment.

2. The plaintiff's appeal against the defendant 2 and the claim extended in the trial room are dismissed, respectively.

3. The costs of lawsuit incurred between the Plaintiff and Defendant 1 shall be borne by Defendant 1 in total, and the costs of lawsuit incurred between the Plaintiff and Defendant 2 shall be borne by the Plaintiff.

4. The portion of payment of the amount under paragraph (1) may be provisionally executed.

Order Nos. 1 and 2 shall pay 5% per annum from March 16, 2006 to the service date of a copy of the application for modification of the purport of the claim and the cause of the claim of this case, and 20% per annum from the next day to the day of complete payment (the plaintiff extended the claim of this case at the trial).

1. Claim against Defendant 1;

[Grounds for recognition: Confession (Article 150 (3) and (1) of the Civil Procedure Act)]

The Plaintiff loaned KRW 35 million to Defendant 1 on or after the due date of October 15, 2002 (hereinafter “instant loan”) with interest 2.5% on or after the due date of payment on or after October 15, 2002 (hereinafter “the instant loan”); additionally, on December 1, 2004, loans KRW 20 million with interest 2.5% on or after the due date of payment on November 30, 2005 (hereinafter “additional loan”); Defendant 1 paid KRW 38.6 million to the Plaintiff by August 8, 2006; Defendant 38.6 million on or after the due date of payment on or after March 15, 2006; Defendant 43,389,726 of the instant additional loan and interest 438,726,79,79, and 279,76,76, and 200,00 won remaining after the loan payment.

Thus, Defendant 1 is obligated to pay to the Plaintiff the amount calculated by applying the rate of 2.5% per month, which is the agreed rate of KRW 35,789,726, which is the sum of KRW 35,789,726 of the loan principal of this case and the remaining interest KRW 4,789,726 (the Plaintiff is not the subject of this case as to the additional principal of the loan of KRW 20 million and damages for delay calculated from March 16, 2006) and the amount of KRW 35,00,000,000 of the loan principal of this case from March 16, 2006 (the amount of KRW 38,60,000,000 paid by Defendant 1 as to the loan of this case and the additional loan of KRW 43,389,726, the following day after calculation) to the day of complete payment.

2. Claim against the defendant 2

A. Summary of the plaintiff's assertion

The Plaintiff, while lending the instant loan to Defendant 1, was established a right to collateral security on October 10, 2002 with respect to the amount of the maximum debt amount of the instant real estate amount of KRW 46 million on a donation from Defendant 1 on May 4, 2004 and the registration of ownership transfer was completed on June 8, 2004, the Plaintiff deposited KRW 914 square meters (number 1 omitted), approximately 60 square meters prior to the same Ri (number 2 omitted), and KRW 1226 square meters prior to the same Ri (number 3 omitted), which was owned by Defendant 1. However, on March 15, 2006, the Plaintiff acquired the Plaintiff’s right to collateral security deposit of the instant real estate at KRW 82,537,800 from the Korea Highway Corporation’s deposit money, which was equivalent to the amount of the said right to collateral security deposit of the instant real estate, and thus, the Plaintiff sustained the Plaintiff’s right to collateral security deposit of the instant real estate at KRW 9767.

(b) Markets:

Article 370 of the Civil Act and the proviso of Article 342 of the Civil Act provide that a mortgagee shall attach money or other things to be paid or delivered by the mortgagee in order to exercise the subrogation right is to maintain the specificity of the claim which is the object of subrogation, to preserve its validity, and at the same time not to inflict any loss on the third party. Thus, as long as money or other things which are modified objects of the mortgaged object have already been seized by a third party and the money or things have already been specified, the mortgagee may exercise the subrogation right and obtain preferential repayment from the general creditor even though he did not attach it by himself. However, the exercise method is a submission of documents proving the existence of the security right under Article 273 of the Civil Execution Act to the court of execution and submit it to the court of execution, or demand a distribution under Article 247(1) of the Civil Execution Act. Thus, the mortgagee cannot obtain a preferential reimbursement from the compensation without proceeding to exercise the subrogation right, and even if the mortgagee fails to exercise the subrogation right, the mortgagee cannot obtain a preferential reimbursement from another creditor or creditor (see Supreme Court Decision 201301Do201.

This legal principle applies to the case where the owner of the land to be expropriated obtains the benefit by receiving all the deposit money, and as long as the plaintiff lost the right of preferential payment because the plaintiff did not proceed to exercise the right of subrogation, it is reasonable to view that the plaintiff cannot make a claim for return of unjust enrichment against the defendant 2 even if he received the full deposit money and thereby exempted the burden of collateral security from the burden.

Therefore, the plaintiff's claim for restitution of unjust enrichment against the defendant 2 is without merit.

3. Conclusion

Therefore, the plaintiff's claim against the defendant 1 is justified, and the claim against the defendant 2 is dismissed as there is no ground. As to the defendant 1, the part against the defendant 1 among the judgment of the court of first instance is to be changed, and the conclusion of the judgment against the defendant 2 is legitimate, so the plaintiff's appeal and the claim extended in the court of first instance is dismissed. It is so decided as per Disposition.

Judges Park Jong-chul (Presiding Judge)