[1] Whether an applicant creditor may extend the amount claimed by submitting a claim statement, etc. in an auction procedure for exercising a security right (negative)

[2] In a case where a person liable for receiving a distribution receives a distribution without receiving a distribution, whether the right to claim the return of unjust enrichment is recognized for the creditor who failed to receive the distribution (affirmative)

[3] The case holding that the first-class mortgagee is liable to return unjust enrichment in relation to the amount that the second-class mortgagee who did not receive dividends out of the excess amount since the amount was determined within the limit of the claim amount stated in the initial application for auction, in case where the first-class mortgagee applied for auction on part of the secured claim as the claim amount and received dividends in excess of the initial claim amount after expanding the claim amount after having applied for auction

[4] Whether monetary gains acquired by unjust gains are presumed to exist, regardless of whether they are consumed (affirmative)

[5] The case holding that a bona fide beneficiary who lost a lawsuit seeking restitution of unjust enrichment does not have a duty to return legal interest on unjust enrichment before the date of filing the lawsuit

[1] Article 80 subparag. 3 and Article 268 of the Civil Execution Act / [2] Article 741 of the Civil Act, Articles 148 and 256 of the Civil Execution Act / [3] Article 741 of the Civil Act, Articles 80 subparag. 3, 148, 256, and 268 of the Civil Execution Act / [4] Articles 741 and 748 of the Civil Act / [5] Articles 748 and 749(2) of the Civil Act

[1] Supreme Court Decision 92Da50270 delivered on January 25, 1994 (Gong1994Sang, 792), Supreme Court Decision 99Da11526 delivered on March 23, 2001 (Gong2001Sang, 930) / [2] Supreme Court Decision 86Da2949 delivered on November 8, 198 (Gong198Ha, 1522), Supreme Court Decision 2003Da32681 Delivered on April 9, 2004 (Gong2004Da39546 delivered on February 9, 2007) / [307Da13979 delivered on September 16, 197] Supreme Court Decision 2006Da395439 delivered on September 19, 207

Plaintiff

Defendant (Law Firm Multilater, Attorneys Ba-jin et al., Counsel for defendant-appellant)

Seoul Southern District Court Decision 2007Na4313 Decided January 31, 2008

The part of the judgment of the court below against the defendant who ordered payment of 25,10,052 won in excess of 5% per annum from September 14, 2006 to June 26, 2008 and 20% per annum from the next day to the date of full payment, shall be reversed, and the judgment of the court of first instance shall be revoked, and the corresponding part of the plaintiff's claim shall be dismissed. The defendant's remaining appeal shall be dismissed. 40% of the total litigation costs shall be borne by the plaintiff, and the remainder shall be borne by the defendant.

We examine the grounds of appeal.

1. As to the establishment of obligation to return unjust enrichment

Where an applicant creditor has filed an application for auction with only a part of the secured claim as the claim amount, barring any other special circumstances, the claim amount of the applicant creditor shall be determined within the limit of the amount of the claim stated, and the claim amount shall not be expanded by the method such as expanding the claim amount in the statement of claim and submitting it by the applicant creditor (see, e.g., Supreme Court Decisions 92Da50270, Jan. 25, 1994; 99Da1526, Mar. 23, 2001).

In addition, since the execution of distribution according to the confirmed distribution schedule does not confirm the substantive rights, in case where a person who is liable to receive a distribution receives a distribution without receiving the distribution, a creditor who has not received the distribution may file a claim for return of unjust enrichment against the person who received the distribution, regardless of whether the person raised an objection to the distribution or whether the distribution procedure has been established in form (see, e.g., Supreme Court Decisions 86Meu2949, Nov. 8, 198; 2003Da32681, Apr. 9, 2004).

Upon citing the judgment of the court of first instance, the court below held that the defendant, the first priority collective security right to the real estate of this case, applied for an auction of KRW 20 million with the initial claim amount of KRW 211,214,466, extended the claim amount of KRW 211,214,466. In the above auction procedure, the execution court distributed to the defendant the total amount of KRW 61,949,535, which was deducted from the sale price and interest of the above real estate. The plaintiff recognized the establishment of the second priority collective security right to secure the claim as the creditor of promissory notes against the non-party. Since the amount that the defendant is entitled to receive in the auction procedure is confirmed to be limited to KRW 20,00,000, the defendant is liable to return unjust enrichment with respect to the amount that the plaintiff should have received in excess of the above amount. The judgment of the court below is acceptable in light of the above legal principles and records, and there is no violation of the rules of evidence, etc.

However, the court below erred by omitting judgment on the defendant's argument that part of the secured debt established in the future of the plaintiff was extinguished by repayment or payment in kind, but it is obvious that the evidence submitted by the defendant alone is insufficient to recognize the repayment or payment in kind, and thus the above argument cannot be accepted. Thus, the above error by the court below did not affect the conclusion of the judgment.

2. Regarding the scope of return of unjust enrichment

A. Where a person gains a benefit from another person's property or labor without any legal ground and thereby causes loss to another person, such benefit shall be presumed to exist, regardless of whether the person who acquired the benefit was consumed or not (see Supreme Court Decisions 69Da1093, Sept. 30, 1969; 96Da32881, Dec. 10, 196, etc.).

In the same purport, the court below is just in holding that the defendant's interest in the dividend amount exceeding the above 20,000,000 won exists and that the defendant is 25,110,052 won out of the excess dividend amount to be returned to the defendant as unjust enrichment, and there is no error in the misapprehension of legal principles as otherwise alleged in the ground of appeal.

B. However, as the defendant constitutes a bona fide beneficiary, the defendant is not obligated to return the above 25,110,052 won prior to September 14, 2006, which is the filing date of the lawsuit in this case, which is regarded as the malicious beneficiary by losing the lawsuit in this case.

Nevertheless, the court below ordered the payment of statutory interest and delay damages from October 14, 2005, which is the day following the date of distribution on the above amount. In so doing, the court below erred by misapprehending the legal principles on the scope of return of unjust enrichment, which affected the conclusion of the judgment. The part pointing this out in the grounds of appeal is with merit.

3. Conclusion

Therefore, the part of the judgment of the court below against the defendant ordering payment exceeding 5% per annum from September 14, 2006 to the date of this judgment, and 20% per annum from the next day to the date of full payment. This part is sufficient to be directly judged by the court, and therefore, it is decided to be readable under Article 437 of the Civil Procedure Act. The judgment of the court of first instance corresponding to the above reversed part is revoked, the plaintiff's claim corresponding to the above reversed part is dismissed, and the defendant's remaining appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Shin Hyun-chul (Presiding Justice)