Whether the right to claim a return of unjust enrichment is recognized where a creditor who has the right to claim a preferential reimbursement under substantive law, such as wage creditors, fails to make a lawful demand for distribution (negative)

The creditor demanding a distribution under Article 605 (1) of the Civil Procedure Act, which applies mutatis mutandis to the auction procedure to exercise the security right under Article 728 of the same Act, may receive the distribution only in the case of a demand for distribution not later than the successful bid date. In the case of failure to make a lawful demand for distribution, even if the creditor having the right to demand a preferential reimbursement under the substantive law does not receive the distribution. Thus, if the distribution schedule is prepared and confirmed to exclude the creditor demanding a distribution from the distribution because he did not make a lawful demand for distribution, and the distribution has been executed in accordance with the final and conclusive distribution schedule, the amount equivalent to the amount which could have been entitled to the distribution was distributed to the subordinate creditor, and it cannot be deemed that there is no legal ground.

Article 741 of the Civil Act; Articles 605(1) and 728 of the Civil Procedure Act; Article 30-2 of the Labor Standards Act

[Plaintiff-Appellant] Plaintiff 1 and 1 other (Law Firm Gyeong, Attorneys Park Jong-soo et al., Counsel for plaintiff-appellant)

Leenam-do et al. (Attorneys Kim Jong-soo, Counsel for the plaintiff-appellant)

Han Han Bank Co., Ltd.

Seoul High Court Decision 95Na31678 delivered on January 23, 1996

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

The grounds of appeal are examined.

In a case where a person who is liable to receive a distribution fails to receive a distribution and receives a distribution without receiving a distribution, the preferential creditor who has not received the distribution has the right to claim the return of unjust enrichment against the person who received the distribution. However, the creditor to demand a distribution under Article 605 (1) of the Civil Procedure Act, which applies mutatis mutandis to the auction procedure to exercise the security right under Article 728 of the same Act, can receive the distribution only if he makes the distribution by the successful bid date. In a case where a legitimate distribution is not made, the creditor who has the right to demand a preferential reimbursement under the substantive Act, is not entitled to receive the distribution. Thus, if the creditor to demand a distribution fails to make a lawful distribution, and it is deemed that the distribution was excluded from the distribution, and if the distribution was made in accordance with the finalized distribution schedule, it cannot be deemed that there is no legal ground for it (see Supreme Court Decision 200Da30548, Dec. 28, 196).

In the same purport, the court below is justified in rejecting the plaintiffs' claim for return of unjust enrichment which did not make a legitimate demand for distribution, and there is no error of law by misapprehending the legal principles as to the right to claim return of unjust enrichment, such as the theory of lawsuit.

The Supreme Court's decisions that point out the theory of the lawsuit are different from the case of this case, and it is not appropriate to invoke this case. There is no reason for this argument.

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 Lee Don-hee (Presiding Justice)