[1] In a case where a creditor entitled to receive a distribution did not receive his/her share of dividends and thereby other creditors who do not have rights receive the said share of dividends, whether a creditor who could have received a distribution may file a claim for return of unjust enrichment against other creditors who received a distribution, regardless of whether the creditor raised an objection to distribution or whether the distribution schedule has been fixed (affirmative)

[2] In a case where: (a) in a real estate auction procedure to exercise a security right, the entire amount of the claim was distributed to Company A, a mortgagee, and only a portion of the claim was distributed in the order of 6th priority to the Credit Guarantee Fund and Company B, the general creditor, etc.; (b) Company B, which appeared on the date of distribution, raised an objection to the dividends distributed to Company A; and (c) received the total amount of dividends distributed to Company A in accordance with the decision of recommending settlement, which became final and conclusive by filing a lawsuit of demurrer against distribution against Company B; and (d) Company B, who did not raise an objection to the aforementioned date of distribution, sought a return of unjust enrichment regarding the amount of dividends distributed to Company B in proportion to the amount of the credit amount of the Credit Guarantee Fund’

[1] [Majority Opinion] In a case where a creditor entitled to a dividend did not receive his/her share of dividends and thereby other creditors who did not have rights receive the said share of dividends, the Supreme Court has taken a position that the creditor who could have received dividends may file a claim for return of unjust enrichment against other creditors who received dividends, regardless of whether the said creditor raised an objection to distribution or whether the distribution schedule was fixed.

The main ground of such a legal doctrine is that, even if a creditor participating in a distribution procedure did not object to a distribution and the distribution procedure has been completed, it would be consistent with the order of substantive law to rectify the outcome of erroneous dividends insofar as there is no legitimate title to retain the said benefit to other creditors who received the distribution. Furthermore, the practical necessity to allow a claim for return of unjust enrichment (the limitation of a lawsuit of demurrer to a distribution or supplementation of the problems arising from the creditor’s revocation lawsuit’s return), the issues arising from the institutional or practical limits of the distribution procedure under the current Civil Execution Act, the contents and purport of Article 155 of the Civil Execution Act, and the legislative history, etc., the previous Supreme Court precedents ought to be maintained as it is reasonable and practical.

[Dissenting Opinion by Justice Jo Hee-de, Justice Lee Ki-taik, and Justice Ahn Jae-chul] The granting of a claim for return of unjust enrichment by a creditor who did not object to a distribution after the completion of the distribution procedure, as in the previous Supreme Court precedents, is contrary to the language and text of Article 155 of the Civil Execution Act as well as the overall purport of the Civil Execution Act, and the final distribution procedure is de facto back in a way that is not scheduled under the Civil Execution Act, and thus, reveals the problems impeding prompt confirmation of the distribution procedure

In addition, since a creditor who did not object to a distribution even though he/she had an opportunity to object to the distribution in the distribution procedure has expressed his/her intent not to dispute the substantive legal relationship formed through the pertinent procedure passively, such creditor’s independent decision may serve as a legal ground for attribution of dividends. Nevertheless, allowing a creditor who did not object to a distribution after the completion of the distribution procedure to file a claim for return of unjust enrichment by creditors who did not object to a distribution after the completion of the distribution procedure not only contravenes the doctrine of speech, but also disregards a series of distribution procedures and their efforts.

Therefore, inasmuch as a creditor was given an opportunity to state his/her opinion by attending the date of distribution upon summons, but the distribution procedure is completed without using such opportunity, it is reasonable to deem that the creditor should not be allowed to assert his/her substantive right by filing a lawsuit claiming return of unjust enrichment against other creditors who received dividends in the distribution procedure.

[2] In a real estate auction procedure for exercising a security right, in case where: (a) the entire amount of the claim is distributed to Company A, a mortgagee, and only part of the amount of the claim was distributed to the Credit Guarantee Fund and Company B, a general creditor, etc.; (b) Company B, who appeared on the date of distribution, raised an objection to the dividends distributed to the Bank A; and (c) received the total amount of dividends distributed to the Bank A in accordance with the decision of recommending settlement that became final and conclusive by filing a lawsuit of demurrer against distribution against Company B; (d) the Credit Guarantee Fund did not raise an objection to the aforementioned date of distribution; and (e) sought a return of unjust enrichment regarding the amount of dividends in proportion to the amount of the claims of the Credit Guarantee Fund among the dividends received by Company B against Company B, the case holding that: (a) the dividends erroneously distributed to the Bank A shall be equally distributed to the six-class creditors who did not receive the entire amount of the claim in the distribution procedure; and (b) even if the dividends were paid to the Credit Guarantee Fund, it shall be deemed that Company B did not have any other obligation to return the dividends to the Credit Guarantee Fund as unjust enrichment.

[1] Article 593 of the former Civil Procedure Act (wholly amended by Act No. 626 of Jan. 26, 2002), Article 145(2), Article 146, Article 148 subparag. 2, Articles 149(1), 150(2), 151(3), 152(2), 153(1), 154(1) and (3), 155, 158, and 268 of the Civil Procedure Act, Articles 2, 406(1), 407, and 741 of the Civil Act / [2] Articles 151(3) and 154(1), 154(1), and (3), 154(1), and 157 of the Civil Execution Act, Article 157 of the Civil Execution Act, Article 157(1), and Article 741 of the Civil Act

[1] Supreme Court Decision 63Da839 delivered on July 14, 1964 (No. 12-2, 15), Supreme Court Decision 93Da5241 delivered on February 22, 1994 (Gong1994Sang, 1083), Supreme Court Decision 96Da51585 delivered on February 14, 1997 (Gong1997Sang, 769Sang, 7699Da53230 delivered on October 10, 200 (Gong200Ha, 2299), Supreme Court Decision 2006Da39546 delivered on February 9, 207 (Gong2007Sang, 433), Supreme Court Decision 2007Da41301 delivered on March 29, 2007, Supreme Court Decision 2007Da4201901 delivered on March 29, 2007).

The Credit Guarantee Fund (Attorney above-at-law)

Han-gu Asset Management Co., Ltd. (Law Firm Han-chul, Attorneys Park Jong-hoon et al., Counsel for the plaintiff-appellant)

Daejeon District Court Decision 2013Na103573 Decided February 11, 2014

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

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. Case summary and key issue

A. The Plaintiff participated in the real estate auction procedure to exercise the security right as a general creditor, and did not raise an objection on the distribution schedule. On the distribution date, the Defendant, who is another general creditor, raised an objection against Hyundai Mutual Savings Bank Co., Ltd. (hereinafter referred to as the “Nung Mutual Savings Bank”), which is a mortgagee, and received dividends in accordance with the final and conclusive decision of recommending settlement by filing a lawsuit of demurrer against distribution. The Plaintiff sought a return of unjust enrichment regarding the amount proportional to the amount of claims of the Plaintiff among the dividends received by the Defendant.

The key issue of the instant case is whether a creditor who participated in the distribution procedure is entitled to file a claim for return of unjust enrichment against other creditors who received dividends in the said distribution procedure even after the distribution schedule became final and conclusive because he/she did not object to the date of distribution.

B. The following discussions on the issues of this case include not only cases where a creditor who participated in the distribution procedure by legitimate demand for distribution but did not object to distribution on the date of distribution, but also where it is deemed that he/she did not appear on the date of distribution upon lawful notification (Article 153(1) of the Civil Execution Act), but also where an objection is withdrawn after having filed a lawsuit of demurrer to distribution, but also where the lawsuit of demurrer to distribution is deemed to have been withdrawn because he/she did not appear on the date of the first pleading (hereinafter referred to as “creditor who did not object to distribution, etc.” in total of the aforementioned creditors). However, the cases where a creditor entitled to receive distribution by distribution (Article 148 subparag. 2 of the Civil Execution Act) is excluded from distribution due to his/her failure to make a lawful demand for distribution by the date of completion of the request for distribution and where a creditor who raised an objection on the date of distribution fails to comply with evidentiary documents proving the period of submission of an objection to distribution under Article 155 of the Civil Execution Act are excluded.

2. Whether to allow a claim for return of unjust enrichment by creditors who have not raised an objection to distribution;

A. Legislative history of Article 155 of the Civil Execution Act and previous Supreme Court precedents

(1) Legislative history of Article 155 of the Civil Execution Act

Article 155 of the Civil Execution Act provides that “Where a creditor who has raised an objection fails to observe the period under Article 154(3), it shall not affect the exercise of preferential rights and other rights by means of a lawsuit against the creditor who has received distributions pursuant to the distribution schedule.” The legislative history of the aforementioned provision is as follows:

Article 593 of the Civil Procedure Act (amended by Act No. 547 of Apr. 4, 1960) provides, “In cases where a creditor dissatisfied with the distribution schedule neglects the period under the preceding Article, the right to claim priority against the creditor who received dividends pursuant to the distribution schedule shall not be affected.” This is a receipt of Article 764(2) of the former German Civil Procedure Act (amended by Act No. 878(2) of the current German Civil Procedure Act) through Article 634 of the current German Civil Procedure Act (amended by Act No. 878(2)). In Germany, the legislative purport of the above provision is examined as a provision confirming that the distribution procedure is not determined by the substantive legal relationship, thereby allowing the filing of a claim for return of unjust enrichment by a creditor who did not appear on the date of distribution or who did not raise any objection widely. Germany does not recognize res judicata effect or binding effect on the distribution schedule, and the dividend result may vary from the substantive legal relationship.

Article 593 of the Civil Procedure Act was amended by Act No. 1499 on December 13, 1963, and the part of “victim of objection” was amended to “Objection” and “priority right” to “priority right and other rights,” respectively. This was maintained in the Civil Execution Act enacted by Act No. 6627 on January 26, 2002 (However, the expression of “priority right and other rights” was changed to “priority right and other rights”).

The above provision of the Civil Procedure Act was amended on December 13, 1963 as the "priority right, etc." at the time of the amendment, and the reason for the amendment was different from that of Germany, and since there is no reason to limit the "priority right" to the "priority right" in our legal system adopting the principle of equality, it was a general view of academic circles to clearly view that general creditors can claim the return of unjust enrichment against the person who acquired unjust enrichment pursuant to the distribution schedule.

(2) Previous Supreme Court precedents

In fact, Supreme Court Decision 63Da839 Decided July 14, 1964 sentenced after the amendment of the Civil Procedure Act was decided as follows: (a) in a case of voluntary auction procedure under the former Auction Act (amended by Act No. 968 of Jan. 15, 1962 and repealed by Act No. 4201 of Jan. 13, 1990), if a person liable to receive dividends fails to receive dividends, the right to claim return of unjust enrichment arises, regardless of whether the person raises an objection to the dividends or whether the distribution procedure becomes final and conclusive; and (b) such position was consistent with the purport that the Civil Procedure Act was repealed and the Civil Procedure Act (amended by Act No. 4201 of Jan. 13, 1990) and the Civil Procedure Act (amended by Act No. 4201 of Feb. 22, 1994; and (c) the Supreme Court Decision 93Da5241975 decided Apr. 16, 2019>

B. Legal basis of the Supreme Court precedents

(1) The attitude of the Supreme Court precedents

The Supreme Court has taken the position that in case where creditors entitled to receive a dividend did not receive the share of dividends by themselves and thereby other creditors who do not have rights receive the said share of dividends, the creditors who could have received a dividend may file a claim for return of unjust enrichment against other creditors who received the dividend regardless of whether the creditors raised an objection to distribution or whether the distribution schedule became final and conclusive.

The main ground of such a legal doctrine is that, even if a creditor participating in a distribution procedure did not object to a distribution and the distribution procedure has been completed, it would be consistent with the substantive order of law allowing the creditor who received the dividend to correct the outcome of erroneous distribution unless he/she has a legitimate title to retain the benefit therefrom. Furthermore, in light of the practical necessity to allow a claim for return of unjust enrichment (the limitation of a lawsuit of demurrer to a distribution, or supplementation of the problems arising from the creditor’s revocation lawsuit’s return), the issues arising from the institutional or practical limits of the distribution procedure under the current Civil Execution Act, the contents and purport of Article 155 of the Civil Execution Act, and the legislative history, etc., the previous Supreme Court precedents shall be maintained as it is reasonable and practical. The reasons are as follows.

(2) Formation of a claim for wrong dividend and return of unjust enrichment

(A) Article 741 of the Civil Act provides, “A person who obtains a benefit from another’s property or service without any legal cause and thereby causes loss to the other person shall return such benefit.” ① When meeting the requirements of acquisition of benefit and the occurrence of damage therefrom, and ② lack of legal cause for benefit, unjust enrichment shall be established. An obligee taking part in the auction procedure shall have the opposing interest that another obligee would not receive a distribution or would receive a less amount if a preferential or more amount is distributed to any obligee over a given sale price. In the event that the obligee who received a distribution of the object of auction did not receive a share of distribution and the obligee who received a distribution of the said share of distribution was not entitled to receive a distribution due to a mistake in the sale price of the object of auction, the obligee who received the dividend would have infringed the obligee’s rights that could have received the distribution, and as such, another obligee who received the dividend has a duty to return it with unjust enrichment unless there is a legitimate title to hold such benefit.

(B) Under the Civil Execution Act, the order of priority of dividends shall be in accordance with the Civil Act, the Commercial Act, and other Acts (Article 145(2)), and if claims participating in dividends are all general claims, it shall be distributed in the way of proportional distribution pursuant to the principle of creditor equality. However, just because dividends have been made in accordance with the established distribution schedule, there is no legitimate title to holding the said profits by other creditors who received dividends, i.e., “legal cause” as stipulated under Article 741 of the Civil Act. This is because the distribution procedure only forms part of the auction procedure, which is the means of realizing substantive rights, and accordingly does not confirm or form substantive rights. This is more true in light of the fact that the provisions of the Civil Execution Act on dividends do not regulate the substantive rights and contents thereof, but rather focusing on the procedural process. Accordingly, even if creditors are deemed to have consented to the payment of dividends in accordance with the distribution schedule or did not appear on the date of distribution and did not have agreed to the effect of res judicata as to the distribution schedule under the Civil Execution Act, this does not mean the creditor’s consent to the distribution procedure.

(C) A senior creditor excluded from a distribution due to his/her failure to make a lawful demand may not file a claim for return of unjust enrichment against the subordinate creditor who received a substitute distribution (see, e.g., Supreme Court Decisions 96Da10263, Feb. 25, 1997; 98Da12379, Oct. 13, 198). Before a creditor makes a demand for distribution, he/she has only a potential and abstract expectation that he/she would have received an amount of money equivalent to the debtor’s responsible property in the stage prior to the creditor’s demand for distribution. However, the creditor has a specific right to have a certain amount of dividend reverted to himself/herself upon the lapse of the period of the demand for distribution due to the progress of the auction procedure after he/she participated in the distribution procedure by a demand for distribution and the period of the demand for distribution expires. Accordingly, if a creditor received dividends exceeding the amount he/she could have received dividends or dividends to be reverted to another creditor even if he/she was not in the position of receiving dividends, it shall be deemed that other creditor obtained

(D) Article 150(2) of the Civil Execution Act provides that “When the interested parties present on the date of distribution and the creditors demanding distribution have reached an agreement, a distribution schedule shall be prepared pursuant thereto.” Article 152(2) of the same Act provides that “When the creditors related to the distribution have deemed that an objection is justifiable or have reached an agreement by other methods, the court of execution shall revise the distribution schedule pursuant thereto and have the creditors implement the distribution.” However, this provision provides that the distribution relationship may be independently determined between the interested parties and the creditors on the premise that “agreement” or the creditors related to the distribution have consented”. Accordingly, solely on the ground that the distribution schedule became final and conclusive by failing to make an objection to distribution without such agreement or consent, the legitimate title to hold dividends received as a result of erroneous distribution, namely, “legal cause” does not arise.

(E) Article 155 of the Civil Execution Act is reasonable to interpret the provision confirming that the creditor does not lose his/her rights under substantive law, regardless of whether the creditor did not take certain procedures such as an objection to distribution, etc. or whether the continuation of lawsuit of demurrer to distribution has ceased to exist.

(3) The need to allow the return of unjust enrichment

(A) Supplement of the limitation on the lawsuit of demurrer against distribution

The Civil Execution Act provides a separate remedy for creditors to assert their rights under the substantive law, such as a statement of objection and a lawsuit of demurrer against distribution on the date of distribution. However, a lawsuit of demurrer against distribution is strictly setting the requirements for exercise, such as limiting the person having the right to file a lawsuit of demurrer to distribution to “creditors or debtors who have stated an objection on the date of distribution” and setting the period for filing a lawsuit of demurrer to distribution to “one week” in the short period of “one week.” This restriction is aimed at the prompt finalization of the distribution procedure, but it is clearly limited in terms of providing the parties with an opportunity to correct the outcome due to erroneous distribution to conform

According to the established precedents of the Supreme Court, in a lawsuit of demurrer against distribution filed by a creditor, when the Plaintiff’s claim is well-grounded, the distribution schedule is revised by deeming that the Defendant distributes the amount that the Defendant became unable to receive as dividends to the Plaintiff until the amount reaches the Plaintiff’s claim amount (see, e.g., Supreme Court Decision 98Da3818, May 22, 1998). This is due to the inherent nature of the system of a lawsuit of demurrer against distribution to ensure the relative resolution between the parties related to the objection against distribution, thereby ensuring the efficiency of trial. However, according to such legal doctrine, the Plaintiff may possess more than the amount that the Plaintiff could have received in the event that the distribution was made except the Defendant who has no original right, and such outcome does not comply with the principle of creditor equality. If a creditor who did not institute a lawsuit of demurrer against distribution permits a claim for return of unjust enrichment by creditors, the aforementioned distribution outcome may be adjusted ex post facto, in line with the principle of creditor equality.

Furthermore, in a lawsuit claiming a return of unjust enrichment, the scope of unjust enrichment to be returned by taking into account the claims of other creditors who participated in the distribution within the scope of damages of the claimant is set, unlike the lawsuit claiming a distribution, can derive conclusion that is consistent with the principle of creditor equality, unlike the lawsuit claiming a return of unjust enrichment. Therefore, allowing a creditor to file a claim for a return of unjust enrichment after

(B) To supplement the issues of return of value in a lawsuit seeking revocation of a fraudulent act

(B) In a case where the act of establishing a mortgage constitutes a fraudulent act, as a matter of principle, the revocation creditor is required to seek the cancellation of the registration of creation of a mortgage as a restitution, but if the auction procedure for real estate was commenced and the price was paid by the purchaser and the registration of creation of a mortgage was cancelled pursuant to the entrustment by the court of execution, the revocation creditor is no longer entitled to seek the cancellation of the registration of creation of a mortgage as a restitution. In such a case, the return of value is allowed by the method of restitution (see Supreme Court Decision 2000Da44348, Feb. 27, 2001, etc.). The revocation creditor is entitled to claim the return of dividends directly to the mortgagee who is a beneficiary who has already received the dividends in reality (see Supreme Court Decisions 97Da58316, May 15, 1998; 98Da41490, Sept. 7, 199).

Although the current laws and regulations allow revocation creditors to acquire exclusive benefit due to lack of institutional structure, other creditors who did not object to a distribution in the distribution procedure may file a claim for return of unjust enrichment against revocation creditors pursuant to the previous Supreme Court precedents. As such, the opportunity to realize the principle of creditor equality among creditors who participated in the distribution procedure is to some extent guaranteed. However, if a claim for return of unjust enrichment by creditors who did not object to a distribution is prohibited in principle by amending the Supreme Court precedents, then there is a problem that the problem of acquisition of exclusive benefit by revocation creditors would lose means to supplement or correct the problem of return of unjust enrichment by revocation of fraudulent act.

(4) The issues arising from the institutional or practical limits of the distribution procedure under the current Civil Execution Act

(A) Matters concerning notification of the date of distribution

The distribution procedure begins by notifying the interested parties and creditors demanding distribution of the date of distribution and demanding the submission of a statement of claims (Article 146 of the Civil Execution Act, Article 81 of the Civil Execution Rule). Such notification and peremptory notice may be made in such a way as deemed reasonable (Article 8(1) of the Civil Execution Rule). However, the current practice of notification of the date of distribution may arise where the notice of the date of distribution is served by mail at the address on the registry or the address reported by the creditors and where it is difficult for creditors to identify the address of creditors, and where the notification of the date of distribution is served ex officio when the notification of the date of distribution is served by public notice and it is difficult for creditors to know the date of distribution. In particular, the case where the address of the registered provisional seizure authority changes before the commencement of the provisional seizure order and the address of creditors becomes unknown is made by entrustment by the court of execution at the time of the provisional seizure (see Article 293 of the Civil Execution Act). Therefore, it is difficult for persons holding the right of provisional seizure to participate in the distribution procedure.

There may be cases where the opportunity to object to distribution, etc. is not guaranteed even though the creditor was duly dispatched, served or served by public notice in practice of notification of the date of distribution under the current Civil Execution Act, so the exercise of the right to claim return of unjust enrichment does not necessarily be restricted.

(B) The perusal period for the draft of the short-term distribution schedule and the period allowed for filing a lawsuit of demurrer against distribution

A draft of a distribution schedule prepared by a judicial assistant officer on the basis of the statements and records of execution submitted by the creditors shall be kept in the court three days prior to the date of distribution in order to show them to the creditors and debtors (Article 149(1) of the Civil Execution Act). A creditor may be present on the date of distribution and raise an objection against claims of other creditors or the precedence of such claims (Article 151(3) of the Civil Execution Act). A creditor who has raised an objection against other creditors shall submit the documents attesting the fact of filing a lawsuit of demurrer against distribution within one week from the date of distribution (Article 154(1) and (3) of the Civil Execution Act).

Under the current Civil Execution Act, creditors participating in dividends are merely “three days” only for the perusal period of the draft of the distribution schedule, which is necessary to confirm the legal relationship, priority, etc., and to determine whether to object to dividends. Therefore, it is not easy to peruse or peruse the draft of the distribution schedule prior to the date of distribution, or to raise an objection by examining the distribution schedule within a short period even if perusal is made. The most difficult case where creditors are stated as dividend creditors even if they should not receive dividends, such as lessees, most wage creditors, or mortgagees of fraudulent act, and filing a lawsuit of demurrer to distribution within one week from the date of distribution is more difficult

(C) The debtor's claim for restitution of unjust enrichment

Even if a claim for return of unjust enrichment by a creditor who did not raise an objection to a distribution is limited in cases where a distribution was made in the absence of a claim, or a distribution was made in excess of the scope of a claim, such creditor’s claim for return of unjust enrichment by subrogation of the debtor does not have any way to prevent the creditor from filing a claim for return of unjust enrichment. However, in cases where the debtor did not raise an objection to a distribution, limiting the creditor’s claim for return of unjust enrichment by allowing the debtor’s claim for return of unjust enrichment by subrogation of the debtor, and if the creditor who did not raise an objection to a

(D) Considering the institutional or practical limits of distribution procedures in which the distribution schedule is likely to be prepared differently from the substantive legal relationship, and the time or information necessary to investigate or determine the right and wrong of the distribution schedule is not sufficiently secured, in cases where the distribution procedure is completed and a creditor taking part in the distribution procedure claims for return of unjust enrichment is entirely limited, the genuine holder of a right may not be avoided. In particular, to block the request for the realization of substantive rights on the ground that he/she neglected the procedure merely on the ground that he/she neglected the procedure in our execution reality, such as the so-called “refluence of dividends” by the most creditors in collusion with the debtor.

C. Review of criticism on Supreme Court precedents

(1) If a creditor entitled to receive a distribution fails to receive a distribution due to an erroneous distribution, he/she shall be able to file a claim for return of unjust enrichment. This conclusion is based on the content and purport of various provisions of the Civil Execution Act concerning distribution procedures, including Article 155 of the Civil Execution Act, and the establishment of a claim for return of unjust enrichment pursuant to the substantive law of the erroneous distribution. The foregoing conclusion cannot be affected by the circumstance that, at the time of the enactment of the Civil Execution Act, the legislative decision was made to advance the completion period of the claim for distribution, thereby seeking stability in the auction procedure or the German legal system taking the priority principle is different from our legal system based on

However, it has been pointed out that the previous Supreme Court precedents may cause harm to the stability of the distribution procedure by allowing the re-examination of the matters considered to have been “closed” once. In particular, opening the way to ex post facto back the distribution outcome by a method not scheduled under the Civil Execution Act, even though the distribution procedure has been completed, may cause instability in the outcome of distribution in accordance with the distribution schedule and disregarding the acceptance of other creditors or interested parties who have faithfully participated in the distribution procedure. The above points of criticism or criticism are acceptable.

(2) However, under our Civil Execution Act, the existence and priority of the right to receive dividends are determined on the distribution schedule that is not a judgment, but on the date of distribution that is not a trial date, and even if a creditor files a lawsuit of demurrer against distribution, the judgment of demurrer against distribution is recognized only as relative effect. Therefore, even if the distribution schedule has a high possibility of being prepared differently from the substantive legal relationship, and even if the lawsuit of demurrer against distribution is filed, there is a lot of concern that the substantive right may not be realized properly. Therefore, excluding only the exercise of the right to claim return of unjust enrichment without the overall

The parts necessary for the supplementation of the system are as follows. First, the relevant procedures should be supplemented so that the preparation of a distribution schedule, which serves as the basis of the distribution, can conform to the substantive legal relationship. To ensure the procedural guarantee of the creditors forfeited upon the completion of the distribution procedure, the delivery system, the perusal system of the draft of distribution schedule, the method of operating the date of distribution, etc. To ensure the procedural security of the creditors who are forfeited upon the completion of the distribution procedure, a practical investigation into the existence of claims, preferential rights, etc. should be conducted. In addition, with respect to the distribution schedule finalized, it is necessary to establish the legal basis under which all the creditors participating in the distribution procedure are bound by the distribution schedule or to revise Article 155 of the Civil Execution Act, etc.

(3) Even if a creditor who did not object to a distribution is permitted to file a claim for return of unjust enrichment after the completion of the distribution procedure, there is an inherent limitation that the exercise of the right to claim return of unjust enrichment should not be contrary to the principle of good faith or constitutes an abuse of rights. However, although the Supreme Court has long allowed such a claim for return of unjust enrichment for a long time, there is no phenomenon that the lawsuit claiming return of unjust enrichment has been initiated on the ground of a mistake in the distribution of dividends in practice, or that litigation corresponding to the abuse of rights has increased significantly. Therefore, it is reasonable to operate a system to ensure that the claim for return of unjust enrichment can be faithfully deliberated and determined in the course of the lawsuit for return of unjust enrichment rather than duplicating the claim for return of unjust enrichment

3. Determination on the case

A. Factual relations

The reasoning of the lower judgment and the record reveal the following facts.

(1) On May 25, 1995, Korea Bank Co., Ltd. (SP Bank Co., Ltd. prior to the merger) established the right to collateral security of this case on the instant real estate owned by the Nonparty, for which KRW 200,000,000,000

(2) On October 13, 201, the instant auction was commenced on the instant real estate upon the application of the DNA MMC Loan Co., Ltd. prior to the transfer of the instant mortgage claim.

(3) On November 1, 201, the Plaintiff, as a creditor with an executory exemplification against the Nonparty, etc., demanded a distribution. On November 18, 2011, AIM lending Co., Ltd. (hereinafter “AIM lending”) demanded a distribution on the basis of an executory exemplification against the Nonparty. On May 2, 2012, the Defendant acquired the said claim from AIM lending, and reported on the right on July 3, 2012.

(4) In the instant auction procedure, the date of distribution was set on August 17, 2012. The amount of KRW 148,417,809 (hereinafter “instant dividend”) was distributed in the second priority to the Hyundai Mutual Savings Bank that acquired the instant claim on the collateral security interest from DNF loans, the creditor applying for auction, (hereinafter “instant dividend”). The Plaintiff, the ordinary creditor, and the Defendant, etc., were distributed a fixed amount (0.53%) out of their amount of credit in the sixth priority to the Plaintiff, the Defendant, etc.

(5) On August 17, 2012, the Defendant appeared on the date of distribution, and raised an objection to the instant dividend, and filed a lawsuit of demurrer against distribution against Hyundai Mutual Savings Bank on the same day. The Defendant asserted that the secured claim of the instant right to collateral security has expired by prescription in a lawsuit of demurrer against distribution. The Hyundai Mutual Savings Bank immediately submitted a preparatory document to the effect that the claim was accepted, and the court rendered a ruling of recommending reconciliation with the purport that all of the instant dividends are distributed to the Defendant outside of the due date. The said ruling of recommending reconciliation became final and conclusive on November 23, 2012, and the Defendant received the entire amount of the instant dividends in accordance with the distribution schedule revised on December 13, 2012.

(6) On August 17, 2012, the Plaintiff appeared on the date of distribution, but did not raise an objection. On February 28, 2013, after the decision of recommending settlement between the Defendant and Hyundai Mutual Savings Bank became final and conclusive, the Plaintiff filed the instant lawsuit against the Defendant seeking return of unjust enrichment against the Plaintiff’s share of KRW 9,73,514, out of the proportional distribution amount according to the ratio of the amount of the claim of the sixth-grade creditors (the Plaintiff, Defendant, the NASSS Limited Company, the KAWC Company, and the Federation of Small and Medium Enterprise Cooperatives) to the amount of the instant dividends.

B. Determination as to whether a creditor who did not object to a distribution can file a claim for return of unjust enrichment against other creditors who won the lawsuit of demurrer against distribution, etc.

(1) As seen earlier, the claim for return of unjust enrichment by a creditor who has not raised an objection to a distribution is allowed. Furthermore, the lawsuit of demurrer to a distribution is nothing more than resolving the disputes surrounding the amount of distribution among creditors who are the opposing parties, and its judgment is effective only between the creditors who are the parties to the lawsuit. As such, even in a case where a certain creditor has received a distribution in accordance with the distribution schedule revised based on the final and conclusive judgment in favor of a lawsuit of demurrer to a distribution or the decision of recommending a settlement having the same effect, if the distribution is the result of the receipt of the distribution by the other distribution creditors who are not the parties to the lawsuit of demurrer to a distribution, the other distribution creditor may file a claim for return of unjust enrichment against the creditors who have received the distribution pursuant to the final and conclusive judgment in favor of the lawsuit of demurrer to a distribution or the decision of recommending a compromise (see, e.g., Supreme Court Decisions 2006Da39546, Feb. 9, 2007; 2006Da49130, Mar. 29, 20

(2) We examine the aforementioned facts in light of the aforementioned legal principles.

The instant dividends erroneously distributed to Hyundai Mutual Savings Bank ought to be equally distributed to the sixth-class creditors who did not receive all their claim amounts in the instant distribution procedure. Although the amount distributed to the Plaintiff according to the Plaintiff’s ratio of claim amount, which is the sixth-class creditors, among the instant dividends, ought to be reverted to the Plaintiff, the Defendant’s receiving the total amount of the instant dividends, including the Plaintiff’s share, gains without any legal ground. Therefore, the Defendant is obligated to return the said KRW 9,733,514 to the Plaintiff as unjust enrichment. Although the Plaintiff was present on the date of distribution, it does not change even if the Plaintiff did not raise any objection against the instant dividends, or the Defendant received the instant dividends in accordance with the settlement recommendation decision that became final and conclusive by means of a lawsuit of demurrer against distribution between Hyundai Mutual Savings Bank and Hyundai Mutual Savings Bank.

The judgment below to the same purport is justifiable in accordance with the established legal principles of the Supreme Court as seen earlier. In so determining, the lower court did not err by misapprehending the legal doctrine on the obligee’s claim for return of unjust enrichment and the other party to the claim for return, as otherwise

C. Determination on the misapprehension of legal principles as to the interruption of extinctive prescription and the principle of good faith

The lower court determined that the extinctive prescription of the instant secured claim cannot be deemed to have been interrupted due to provisional attachment, and that the Plaintiff’s claim for return of unjust enrichment against the Defendant was not against the principle of good faith.

Examining the relevant legal principles and records, the lower court did not err by misapprehending the legal doctrine regarding the interruption of extinctive prescription or the principle of good faith, or by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, or by failing to exhaust all necessary deliberations,

4. Conclusion

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, except for a dissenting opinion by Justice Jo Hee-de, Justice Lee Ki-taik, and Justice Ansan-chul.

5. Dissenting Opinion by Justice Jo Hee-de, Justice Lee Ki-taik, and Justice Ansan-chul as to whether allowing a creditor who did not object to a distribution to return unjust enrichment

The Majority Opinion maintains the previous Supreme Court precedents that allow creditors granted an opportunity to file an objection to distribution, etc. to file a claim for return of unjust enrichment against other creditors who have been distributed in the said distribution procedure, even when the distribution schedule became final and conclusive as a result of the creditors having not voluntarily raised an objection to distribution and the distribution procedure has

However, allowing a claim for return of unjust enrichment by a creditor who did not object to a distribution after the completion of the distribution procedure as in the previous Supreme Court precedents is contrary to the language and text of Article 155 of the Civil Execution Act as well as the overall purport of the Civil Execution Act. Moreover, the final and conclusive distribution procedure is de facto back in a manner that is not scheduled under the Civil Execution Act, and thus, causes problems impeding prompt confirmation of the distribution procedure and stability and efficient operation of the enforcement

In addition, since a creditor who did not object to a distribution even though he/she had an opportunity to object to the distribution in the distribution procedure has expressed his/her intent not to dispute the substantive legal relationship formed through the pertinent procedure passively, such creditor’s independent decision may serve as a legal ground for attribution of dividends. Nevertheless, allowing a creditor who did not object to a distribution after the completion of the distribution procedure to file a claim for return of unjust enrichment by creditors who did not object to a distribution after the completion of the distribution procedure not only contravenes the doctrine of speech, but also disregards a series of distribution procedures and their efforts.

Therefore, inasmuch as a creditor was given an opportunity to state his/her opinion by attending the date of distribution upon summons, but the distribution procedure is completed without using such opportunity, it is reasonable to view that it should not be permissible to allow other creditors who received dividends in the distribution procedure to file a lawsuit claiming return of unjust enrichment, thereby asserting their substantive rights.

The following reasons are examined specifically.

A. In light of the overall purport of Article 155 of the Civil Execution Act and the Civil Execution Act, a claim for return of unjust enrichment may not be allowed.

(1) Article 155 of the Civil Execution Act provides that even if creditors who have raised an objection on the date of distribution failed to observe the submission period (one week) for supporting the filing of a lawsuit of demurrer against distribution, it shall not affect the exercise of preferential rights and other rights by means of a lawsuit against the creditors who received distributions pursuant to the distribution schedule.

The Majority Opinion states that a claim for return of unjust enrichment by a creditor who did not raise an objection to a distribution under the premise that the said provision is confirmed or an exemplary provision is permissible. However, given that the said provision limits the scope of creditors who do not affect the exercise of preferential rights and other rights by lawsuit to “object creditors” despite having neglected the aforementioned procedures, it is natural to interpret that the said provision applies only to “object creditors” in accordance with the language and text thereof.

If there is a legislative intent to allow a creditor to file a claim for return of unjust enrichment without asking whether he/she has raised an objection on the date of distribution, it is possible to take into account such intent under the legislative technology. Nevertheless, the legislative intent to apply the said provision only to the creditor who raised an objection is clearly expressed by specifying only the “objecting creditor.” Thus, the said provision cannot be interpreted as a confirmatory or an exemplary provision.

(2) Before the enactment of the Civil Execution Act, the former Civil Procedure Act (wholly amended by Act No. 6626, Jan. 26, 2002; hereinafter the same) allows creditors participating in auction to make a demand for distribution by the date of the decision of sale based on the so-called “equalism” legal system adopted by France, etc. with respect to the distribution order among many concurrent creditors (Article 605(1) of the former Civil Procedure Act). However, as the time allowed for the demand for distribution has delayed due to the delayed period of the time when the demand for distribution was made, it has been pointed out that senior security right has ceased to exist after the date of sale, and its subordinate interest rights, etc. were no longer likely to remain by the person who has the preferential right after the date of sale or after the date of sale, and thus, there were many difficulties in the auction procedure, such as cancellation of the auction procedure. In addition, prior to the enactment of the Civil Execution Act, prior to the expiration date of the auction procedure, the legislative efforts to discover the creditor’s demand for distribution was made more than before the date of sale.

Since the enactment of the Civil Execution Act and the enactment of the Civil Execution Act, legislative decisions have been made in a way that makes prompt confirmation of the completion period of the distribution procedure and the stability of the execution system, the interpretation of the provisions of the Civil Execution Act and the development of the legal principles on the overall distribution procedure should also be consistent with this. From this perspective, allowing wide range of claims for return of unjust enrichment by creditors who did not object to distribution after the completion of the distribution procedure, even though they are not explicitly permitted under Article 155 of the Civil Execution Act, is contrary to the legislative intent and is inconsistent with the overall legal system oriented by the Civil Execution Act.

(3) Even in light of the legislative cases and precedents of Germany, France, Japan, and the United States, there are only Germany in which the claims for return of unjust enrichment are allowed by general creditors after the completion of the distribution procedure, and at least other countries do not allow general creditors to file a claim for return of unjust enrichment after the completion of the distribution procedure. Furthermore, Germany, unlike the Republic of Korea, takes the compulsory execution law system that recognizes creditors’ preferential rights in the distribution procedure based on the “priority principle,” and thus, the German theory and practice should not be accepted when interpreting our Civil Execution Act.

B. A claim for return of unjust enrichment is not permissible even in light of the peculiarity of the distribution procedure under the Civil Execution Act.

(1) The Civil Execution Act provides for the following matters. A court of execution shall set the date to make a statement of distribution and make a notification thereof to interested parties and creditors demanding distribution (main sentence of Article 146), and shall prepare and keep in the court the draft of distribution schedule three days prior to the date of distribution in order to show it to creditors, etc. (Article 149(1)). The court of execution shall determine the distribution schedule by examining interested parties present on the date of distribution and creditors demanding distribution (Article 149(2)). The creditors present on the date of distribution may, to the extent related to their interests, raise an objection against other creditors against their claims or the precedence of their claims (Article 151(3)). When the date of distribution has not been concluded on the date of distribution, limited to the portion not related to the distribution of each creditors indicated on the distribution schedule (Article 152(3)). The creditors who have raised an objection to other creditors on the date of distribution shall file a lawsuit of demurrer against distribution (Article 154(1)5) through (3)4), and (15).

The Civil Execution Act provides that creditors may raise an objection on the date of distribution by notifying the date of distribution and providing creditors with an opportunity to raise an objection on the date of distribution, and at the same time, in preparation for cases where an objection has not been concluded, the said Act limits the cases where creditors are entitled to exercise their rights by means other than a lawsuit of demurrer against distribution to “where creditors who have raised an objection” to “where creditors have failed to observe the period for filing a lawsuit of demurrer against distribution”. This purport is to ensure the prompt determination of distribution procedures and stability of the enforcement system by allowing the settlement of disputes regarding distribution within the enforcement procedure. Therefore, allowing creditors who have not raised an objection against distribution to file a claim for return of unjust enrichment without any restriction after the completion of the distribution procedure, as in the previous Supreme Court precedents, is going back by the means that are not scheduled after the completion of the distribution procedure under the Civil Execution Act, thereby going against the legislative purport of the Civil Execution Act, making the distribution schedule established pursuant to the distribution schedule unstable, and making it unstable, and making various procedures on the date of distribution pursuant to the distribution method

(2) Even though the Civil Execution Act provides a system of demurrer on the date of distribution (Article 151) or a lawsuit of demurrer against distribution (Article 154) and guarantees the obligee’s substantive legal relationship, the obligee who did not use such opportunity may be deemed to have expressed his/her intent not to dispute any more on the substantive legal relationship determined by the distribution schedule. Therefore, the assertion that the distribution schedule was erroneous after the distribution schedule became final and conclusive due to the non-Demurrer against the distribution schedule itself goes against the principle of good faith.

Furthermore, even if a person who did not engage in a certain act according to the stage of the proceeding prescribed by this Act is a legitimate right holder under substantive law, the said legal doctrine is natural in that procedure. Even if a creditor did not object to a distribution but did not actually receive dividends, insofar as the distribution procedure is completed, the substantive right is not extinguished under substantive law, and as long as the creditor did not receive dividends, the creditor may perform compulsory execution, etc. against other property of the debtor. However, if the procedural remedy is limited to the procedural remedy that can realize such substantive right in the pertinent distribution procedure, the said procedural remedy must be followed, and the legal relationship established in the distribution procedure cannot be denied

The principle or necessity of a lawsuit and enforcement procedure is not limited to a non-short-term distribution procedure. In the provisional procedure, there are dismissal of the method of attack and defense (Article 149 of the Civil Procedure Act), the right to ask for distribution after withdrawal of the lawsuit (Article 267(2) of the Civil Procedure Act), the period for filing an appeal, etc. In particular, the Supreme Court held that the period for exercising the right to demand distribution is subject to restriction on the completion period under Article 84(1) of the Civil Execution Act, and that the exercise of the right to demand distribution is not limited to a specific procedure, and that such restriction does not affect the existence and content of the right and the exercise of the right under the substantive law, and that efficient operation of the auction system achieved by such system belongs to an obligee’s right to demand distribution within 15 days prior to the expiration of the period for filing a lawsuit (Article 84(1) of the Civil Procedure Act).

C. Distribution pursuant to the procedure prescribed by the Civil Execution Act cannot be deemed as having no “legal cause”.

(1) Under the Civil Execution Act, when a distribution schedule is finalized and a distribution is made pursuant thereto, the said Act gives creditors an opportunity to mediate interests by agreement with or raising an objection to the said creditors (Articles 150(2) and 151(3)). In addition, when the creditors present on the date of distribution have reached an agreement with the creditors present on the date of distribution and when the creditors related to the distribution are deemed to have justifiable objection, the executing court is bound by the said agreement (Article 152(2)).

The Civil Execution Act, when distributing dividends, distributes dividends through the first agreement and distributes dividends by means of the order of priority or proportional distribution prescribed by the Act only when such agreement is not reached. The distribution relationship among creditors participating in dividends may be changed to a long time according to the creditors’ independent decision-making process, and the order or amount of dividends does not require a strict agreement with the substantive relationship. Therefore, if dividends, such as “agreement” on the date of distribution, accrue to other creditors as a result of a creditor’s independent decision-making on the date of distribution, it cannot be deemed as unjust enrichment without legal basis.

Such a legal doctrine ought to be deemed likewise applicable to cases where a creditor, who had been given an opportunity to raise an objection by appearing on the date of distribution upon receipt of lawful notification of the date of distribution. If a creditor, who was given an opportunity to raise an objection, did not object to a distribution at his/her own option, the said creditor’s voluntary decision constitutes a creditor’s independent decision of attitude, and it is not deemed that there was no “legal cause” as a result of the distribution corresponding to the distribution of agreement.

(2) The Supreme Court held that a creditor demanding a distribution under Article 605(1) of the former Civil Procedure Act may receive a distribution only when he/she made a demand for distribution by the date of sale. Although there exists a right to preferential reimbursement under substantive law, if the distribution schedule has been prepared and implemented as a result of not making a legitimate demand for distribution, he/she shall not be deemed to have any legal cause, on the ground that the amount equivalent to the amount which he/she could have received to receive a distribution was distributed to subordinate creditors when he/she made a lawful demand for distribution (see, e.g., Supreme Court Decisions 98Da12379, Oct. 13, 1998; 2005Da14595, Aug. 25, 2005). In addition, the Supreme Court ruled that if the mortgagee applied for an auction application for a security right after stating only a part of the secured claim as the claim amount, and then the distribution schedule was prepared and finalized based on the claim amount stated in the application for the auction, it shall not be deemed to have been a junior creditor 979.

The Supreme Court rejected a claim for return of unjust enrichment by a creditor, who did not demand a distribution by the completion date of the demand for distribution, or a creditor who stated only a part of the secured claim as the claim amount. On the contrary, allowing a claim for return of unjust enrichment by a creditor who did not raise an objection to distribution, etc. is logical and inconsistent. The Supreme Court precedents seen earlier acknowledged “legal cause” as to the outcome of distribution, even though a distribution was conducted differently from the substantive relationship due to reasons attributable to the party’s intent, such as the case where a creditor did not demand a distribution or a part of a claim was stated as the claim amount. Whether to raise an objection to distribution, etc. is subject to the creditor’s intent, as in the demand for distribution or partial claim, there is no reason to treat it differently. In particular, it is difficult to readily understand from the perspective of equity, to protect creditors who did not appear or creditors, etc. who did not raise an objection even though having been present on the date of distribution, due to the lack of knowledge of the progress of auction or having

D. There is no special reason to maintain the previous Supreme Court precedents.

(1) Generally, there are many creditors in the distribution procedure, and there are many general creditors who are unable to be fully satisfied in the distribution procedure due to lack of satisfaction of all claims. If according to the previous Supreme Court precedents, creditors who did not raise an objection on the date of distribution can file a claim for return of unjust enrichment at any time before the expiration of the extinctive prescription of the claim (ordinary 10 years). However, the preservation period of the records of civil execution cases is three years after the completion of the distribution (see Article 2(f) and attached Table 2 of the Rules on the Preservation of Court Records and Records of Cases, etc.). Thus, in the lawsuit for return of unjust enrichment after the expiration of the period for recording and preservation, the parties to the lawsuit must be fully satisfied with the insufficient evidence and their unclear legal relations. Moreover, the result of distribution is likely to adversely affect other creditors on the basis of permitting a claim for return of unjust enrichment in the name of creditors due to the conflict of interests with the majority creditors. This would cause serious problems in the state of instability after the expiration of the distribution procedure.

(2) Under the current Civil Execution Act, the perusal period of the draft of the distribution schedule necessary for the creditor participating in the distribution to verify the legal relationship or priority, etc. and determine whether to raise an objection to the distribution is limited to three days (Article 149(1)), and the creditor filed a lawsuit of demurrer to distribution within one week from the date of distribution to the court of execution and submit the evidentiary documents thereof to the court of execution (Article 154(1) and (3). As such, there is also an opinion that the creditor participating in the distribution is too short period to accurately determine the existence of substantive legal relationship, amount, and priority of the creditor who did not raise an objection to the distribution. Moreover, there is concern that it is difficult to completely block the creditor who did not raise an objection to the distribution in the practice of distributing dividends

However, the existence of the right to receive substantive dividends is bound to be determined by a lawsuit of demurrer against distribution, etc., and even if information is provided at any time and information within the enforcement procedure, there is a limit to the confirmation thereof. Therefore, the foregoing circumstance cannot be a critical obstacle to limiting the creditor’s claim for return of unjust enrichment.

(3) The limitation of a creditor’s claim for return of unjust enrichment, which did not object to a distribution, is premised on having been able to file an objection against the distribution schedule and thus, even if the previous Supreme Court precedents were modified, it cannot be deemed as a legal interpretation unilaterally unfavorable to the creditor. In a case where a creditor was not notified of the date of distribution, or was unable to appear on the date of distribution due to a cause not attributable to another creditor, deception or coercion, or where the creditor was unable to be held on the date of distribution, the creditor was not provided an opportunity to raise an objection, and thus, the creditor’s claim for return of unjust enrichment may be allowed. Accordingly, under the premise of the guarantee of legitimate procedures as above, the creditor’s independent decision on the degree of attitude on the date of distribution (in the absence of the date of distribution, the failure to make a statement of objection to a distribution, etc.) as an objective requirement, it cannot be said that the restriction on the creditor’s exercise of rights is unreasonable to protect more important public interests, such as the prompt confirmation of

E. The reasons for allowing a claim for return of unjust enrichment shall be comprehensively organized.

(1) Whether it is possible for a creditor granted an opportunity to object to distribution, etc. to file a claim for return of unjust enrichment against other creditors who received dividends in the distribution procedure, even if the distribution schedule became final and conclusive as a result of the creditor’s failure to object to distribution by himself/herself and the distribution procedure is completed, not only the substantive legal aspect of the return of unjust enrichment but also the procedural aspect of the enforcement system

(2) At the time of the former Civil Procedure Act, the Supreme Court’s precedents at the time of the former Civil Procedure Act, even if there exists a preferential payment claim under substantive law, were to take an epoch measures to ensure the stability and efficiency of the execution procedure and the distribution procedure by making it impossible to receive a distribution unless a legitimate demand for distribution is made and to file a claim for return of unjust enrichment against other creditors who received a distribution. The latter Civil Execution Act, which was established thereafter, aims to ensure stability of the enforcement system by setting the distribution procedure as soon as possible by prior to the completion period for the demand for distribution and closing the dispute over the distribution within the execution procedure. Therefore, allowing a creditor, other than creditors who are not explicitly stipulated in Article 155 of

(3) Article 155 of the Civil Execution Act, which provides for cases where a creditor who has raised an objection on the date of distribution may file a lawsuit of demurrer against distribution so that he/she may contest the substantive legal relationship. Article 155 of the same Act also limits the subject of exercise of his/her right to the “objecting creditor” to the “objecting creditor.” In light of the content and overall purport of the said provision under the Civil Execution Act, a claim for return of unjust enrichment by a creditor who has not raised an objection against a distribution should not

(4) Even if a claim for return of unjust enrichment by a creditor who did not object to a distribution is limited, the creditor is limited to the realization of his/her rights under the substantive law only with respect to the legal relationship formed through the distribution procedure, and is able to enforce compulsory execution against the debtor's other property based on his/her rights, and thus, the genuine right holder is not an unjust sacrifice. Moreover, even in cases where the creditor did not object to a distribution and receives dividends from other creditors in the distribution procedure due to the said creditor's failure to object to a distribution, it cannot be deemed unjust enrichment without any legal ground, since other creditors received dividends within the scope of their own claims. Therefore, barring any special circumstance, it would be consistent with the litigation economy and prevent confusion arising from the instability of the distribution procedure.

(5) In addition to the provisions of Article 155 of the Civil Execution Act, as well as the provisions of the Civil Execution Act regarding distribution procedures, the substantive legal aspect and procedural aspect as to the claim for return of unjust enrichment by creditors who did not object to a distribution, etc., it is reasonable to deny the claim for return of unjust enrichment by creditors who did not object to a distribution after the completion of the distribution procedure.

F. We examine the instant case.

(1) On August 17, 2012, the lower court determined that: (a) although the Plaintiff did not raise an objection to the distribution schedule even though he was present on the date of distribution, the Defendant received the instant dividend in accordance with the decision of recommending settlement in a lawsuit of demurrer against distribution against Hyundai Mutual Savings Bank after having raised an objection on the said date; (b) on the premise that the Plaintiff may file a claim for return of unjust enrichment against the Defendant, regardless of whether the Plaintiff raised an objection to distribution, the lower court determined that the Defendant’s distribution amount of KRW 9,73,514 to the Plaintiff according to the ratio of the claim amount among the instant dividends received by the general creditors, constituted unjust enrichment

(2) However, in light of the aforementioned legal principles, insofar as the Plaintiff appeared on the date of distribution and did not raise any objection against the distribution schedule, filing a lawsuit claiming a return of unjust enrichment against the Defendant on the ground that he/she had the right to receive dividends again after the completion of the distribution procedure is not permissible. Therefore, the lower court, which accepted the Plaintiff’s lawsuit claiming a return of unjust enrichment and ordered the Defendant to pay a certain amount, erred by misapprehending the legal doctrine on whether to allow a claim for return of unjust enrichment by creditors who did not object to a distribution, thereby adversely affecting the conclusion

(3) In this case, the Defendant appeared on the date of distribution and raised an objection, and received the dividend in this case by having received a decision of recommending settlement by actively filing a lawsuit of demurrer against distribution is found to have part of his/her right in accordance with the procedures prescribed by the Civil Execution Act. The Defendant has sought his/her right with respect to the acceptance and expense. The distribution procedure and the lawsuit of demurrer against distribution were all completed, and later, the Plaintiff was the other party to the lawsuit of claiming unjust enrichment filed by the Plaintiff and did not contribute to the recovery of rights as above, and the Plaintiff should return the amount equivalent to his/her share to the Plaintiff and bear the litigation costs accordingly. Furthermore, the Defendant is facing the situation that other 6th general creditors than the Plaintiff (in this case, the Defendant is limited to the fourth general creditors, the KAWC, and the Small and Medium Enterprise Federation) (in this case, the period of 10 years extinctive prescription), and there is no need to make a series of efforts to make the distribution schedule as well as the process and the process of economic decision.

For the foregoing reasons, we express our concurrence with the Majority Opinion.

Justices Jo Hee-de (Presiding Justice)