[1] Where a mortgagee registered prior to the registration of commencement of a request for auction fails to demand a distribution, whether the distribution is excluded from the distribution (negative), and where the said mortgagee fails to submit a claim statement by the auction date, the standard amount of distribution (=the maximum amount recorded in the certified copy of the register)

[2] Whether the preferential creditor who did not receive a distribution even after the distribution was made pursuant to the final distribution schedule has the right to claim the return of unjust enrichment (affirmative)

[1] Articles 605 (see current Article 88 of the Civil Execution Act), 653 (1) (see current Article 84 (4) and (5) and 728 (see current Article 268 of the Civil Execution Act) of the former Civil Procedure Act (amended by Act No. 6626 of Jan. 26, 2002), 605 (see current Article 88 of the Civil Execution Act), 653 (1) (see current Article 84 (4) and (5) of the Civil Execution Act), and 728 (see current Article 268 of the Civil Execution Act) of the former Civil Procedure Act / [2] Article 741 of the Civil Act

[1] Supreme Court Decision 95Da34415 delivered on May 28, 1996 (Gong1996Ha, 1978) / [2] Supreme Court Decision 96Da51585 delivered on February 14, 1997 (Gong1997Sang, 769), Supreme Court Decision 86Da2949 delivered on November 8, 198 (Gong198Ha, 1522), Supreme Court Decision 9Da53230 delivered on October 10, 200 (Gong200Ha, 2299), Supreme Court Decision 9Da26948 delivered on March 13, 201 (Gong201Sang, 863Sang, 209Da367949 delivered on April 209, 204)

The administrator Kim-type (Law Firm Mad Co., Ltd., Counsel for the plaintiff-appellant) of Had Co., Ltd., a receiver of Had Co., Ltd., a receiver of Had Co., Ltd., Counsel for the plaintiff-appellant)

[Defendant-Appellant] Korea and one other (Law Firm, Attorney Lee Do-won, Counsel for defendant-appellant)

Seoul High Court Decision 2004Na28766 delivered on November 4, 2004

All appeals are dismissed. The costs of appeal are assessed against the Defendants.

The grounds of appeal are examined.

1. Regarding the incomplete hearing or the argument against the rules of evidence

Where a request for the return of unjust enrichment is made on the grounds that there are substantive defects in the distribution schedule, the existence of substantive rights entitled to receive distributions under such premise shall be as claimed in the grounds of appeal.

Examining the evidence admitted by the court below in comparison with the records, it can be recognized that: (a) the neglect system and the corporation (hereinafter referred to as the “Saccinal division”) have a joint and several surety claim amounting to KRW 8,450,881,72 with respect to the landscape of the representative director of Escinal division (hereinafter referred to as “Escinal division”); (b) the real estate of this case owned by Escinary Park Inscinary; (c) all debts, such as the neglect of rent management, the sole or several joint and several obligations, or a surety obligation, which are currently or may be, in the future, owed as collateral; and (d) the establishment of two collective and several mortgages in this case was established on October 29 and May 9, 1994; (b) even if the plaintiff, who is the manager of Escinal division, received dividends of KRW 2.2.2 billion based on the prior mortgage in the distribution procedure, there is no violation of the rules of evidence or the maximum debt amount within the junior secured claim.

In addition, as seen earlier, the secured claim of the two collateral held by the Plaintiff is a joint and several surety claim for the gambling of neglect electronic, and the lower court did not recognize that the secured claim was another claim, and thus, the Defendant Republic of Korea’s ground of appeal pointing out the lower court’s decision on a different premise cannot be accepted.

2. As to the assertion of misapprehension of legal principles

A. Since the mortgagee registered prior to the registration of the commencement of a request for auction has the same effect as naturally receiving a preferential payment from the successful bid price, even if he/she does not separately demand a distribution instead of extinguishing his/her right due to the successful bid, it shall not be excluded from the distribution of dividends even if such mortgagee did not demand a distribution (see Supreme Court Decision 95Da34415, May 28, 1996). However, if such mortgagee did not submit a claim statement under Article 653(1) of the former Civil Procedure Act (amended by Act No. 6626, Jan. 26, 2002), unless there are special circumstances, the auction court should consider the maximum debt amount recorded in the certified copy of the register as the actual claim amount.

Based on the reasoning of the judgment below, we examine the reasoning of the judgment below in comparison with the record. As long as the plaintiff stated "2.2 billion won" in filing a request for auction based on the priority mortgage, the court below is just in holding that the maximum debt amount of the priority mortgage is eight billion won, and that the claim amount is not extended since the plaintiff submitted a claim statement to expand the claim amount during the auction procedure, and therefore, the auction court distributes only 2.2 billion won to the plaintiff who is in the position of the priority mortgagee (applicant for auction), the plaintiff is also a subordinate mortgagee registered before the decision on commencement of auction of this case. Thus, even if the plaintiff did not make a demand for distribution based on the priority mortgage, even if the plaintiff did not make such demand for distribution, the court of auction should not exclude the plaintiff as the mortgagee, and therefore, the court of auction should have distributed the remaining balance of 2.2 billion won to the plaintiff as the priority mortgagee, and it is not justified in the judgment of the court below that the plaintiff should have been distributed as the junior mortgagee prior to the dividend order of the defendants, and there is no violation of legal principles in civil execution.

B. Since the execution of the distribution according to the confirmed distribution schedule does not confirm the substantive right, in case where a person who is obligated to receive the distribution did not receive the distribution and received the distribution without receiving the distribution, the preferential creditor who did not receive the distribution has the right to claim the return of unjust enrichment, regardless of whether the objection was raised to the distribution or whether the distribution procedure in the form became final and conclusive (see Supreme Court Decisions 96Da51585 delivered on February 14, 1997; 99Da53230 delivered on October 10, 200, etc.).

In this case, as a matter of course, the plaintiff does not demand a distribution as a junior mortgagee registered prior to the registration of the decision on commencing auction, the plaintiff is naturally effective to demand a distribution. Thus, even if the plaintiff did not demand a distribution and did not raise an objection against the distribution schedule on the date of distribution, the plaintiff can make a claim for the return of unjust enrichment against the defendants, who are junior creditors who received a dividend, who received a dividend amount, even though they did not raise an objection against the distribution schedule. Therefore, the decision of the court below to the same purport is just and there is no violation of the law of misunderstanding of legal principles

3. Conclusion

Therefore, all appeals are 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)