[1] Although the identity of the basis of the claim between the preserved claim of provisional seizure and the right to the lawsuit on the merits of the case is recognized, if the right to the lawsuit on the merits is not a monetary claim, whether the provisional seizure has the right to the lawsuit on the merits of the

[2] The method of claiming a return of unjust enrichment (=transfer of a claim for the payment of dividends) and the method of preserving such execution in a case where a creditor who is liable to receive a distribution receives a distribution without receiving a distribution due to a mistake in the distribution schedule prepared in the distribution procedure, and where the dividends have not yet been paid (=provisional disposition prohibiting the payment of dividends

[1] Where the preserved claim of provisional seizure and the right which is the subject matter of a lawsuit on the merits are not strictly identical, and it is recognized that the basis of the claim is identical, the effect of provisional seizure shall affect the right on the merits of a lawsuit. However, the provisional seizure is intended to preserve compulsory execution by monetary claims or other claims convertible into money (Article 276(1) of the Civil Execution Act). Thus, even if the identity of the basis of a claim exists between the preserved claim on the provisional seizure and the right on the merits of a lawsuit on the merits, if the right on the merits of a lawsuit on the merits is not a monetary

[2] The return of unjust enrichment refers to the return of gains acquired without any legal ground and the restoration to the original state. Thus, in a case where a creditor who is liable to receive a distribution is deemed to receive a distribution without receiving a distribution due to an error in the distribution schedule prepared in the distribution procedure, if the dividend was actually paid, a claim for return of unjust enrichment seeking a monetary payment equivalent to the dividend may be filed, but if the dividend has not yet been paid, a claim for return of unjust enrichment may not be made, but in a case where the dividend has not yet been paid, a claim for return of unjust enrichment by transfer of the right to claim the payment of dividend shall not be made, and in such a case,

[1] Article 276 of the Civil Execution Act / [2] Articles 450 and 741 of the Civil Act, Articles 276 and 300 (1) of the Civil Execution Act

[1] Supreme Court Decision 2008Ma1984 Decided March 13, 2009 / [2] Supreme Court Decision 99Da26948 Decided March 13, 2001 (Gong2001Sang, 863)

Applicant

Respondent 1 and 2 others

Daegu High Court Order 2009Kahap5 dated October 15, 2009

The part of the order of the court below against the respondent is reversed, and that part of the case is remanded to the Daegu High Court.

The grounds of reappeal are examined.

1. Where the preserved claim of provisional seizure and the right which is the subject matter of the lawsuit on the merits are not strictly identical, and it is recognized that the basis of the claim is identical, the provisional seizure shall be effective to the right on the merits of the lawsuit (see Supreme Court Order 2008Ma1984, Mar. 13, 2009, etc.). However, the provisional seizure is intended to preserve compulsory execution by monetary claims or other claims convertible into money (see Supreme Court Order 276(1) of the Civil Execution Act). Thus, even if the identity of the claim is recognized between the preserved claim against provisional seizure and the right on the merits of the lawsuit on the merits, if the right on the merits is not a monetary claim, the provisional seizure shall not be deemed to affect

On the other hand, the return of unjust enrichment refers to returning gains acquired without any legal ground and restoring them to the original state. Thus, in a case where a creditor who is liable to receive a distribution is deemed to receive a distribution without receiving a distribution due to a mistake in the distribution schedule prepared in the distribution procedure, if the dividend was actually paid, a claim for return of unjust enrichment seeking a monetary payment equivalent to the dividend may be filed, but if the dividend has not yet been paid, a claim for return of unjust enrichment may not be made, but a claim for the return of unjust enrichment by transfer of the claim for payment of dividend shall not be made (see Supreme Court Decision 9Da26948, Mar. 13, 2001) and in such a case, the preservation of execution shall not be based on a provisional seizure, but by a provisional disposition prohibiting the payment of dividend.

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

The respondent and the non-applicant Nos. 1 and 2 filed an application with the Daegu District Court No. 2007Kadan5854, which infringed the applicant's right to receive dividends in the distribution procedure and received dividends in KRW 93,681,071, the applicant filed an application for provisional seizure against the claim to receive dividends of KRW 93,681,071, which the applicant had against the Republic of Korea (hereinafter "provisional seizure of this case") on March 28, 2007 (hereinafter "provisional seizure of this case").

After all, the above provisional attachment creditors including the respondent filed a lawsuit against the applicant for return of unjust enrichment, which is the main claim of the provisional attachment of this case, the Daegu District Court 2007da38066, and sought the payment of the above KRW 93,681,071, but confirmed that the applicant was not yet paid the dividends on the distribution schedule, and revised the purport of the claim to transfer the claim to the provisional attachment creditors and to notify the Republic of Korea.

Accordingly, on February 18, 2009, the court rendered a judgment on February 18, 2009 that "the applicant shall pay dividends of KRW 13,028,41 out of the claim to pay dividends of KRW 93,681,071 among the claim to pay dividends of KRW 93,028,028,41 out of the claim to pay dividends of KRW 93,681,071 to the Daegu District Court 205, the respondent of the claim to pay dividends of KRW 14,33,252 to the non-applicant 2, the respondent of the claim to pay dividends of KRW 4,33,33,380 to the non-applicant 1, the respondent of the claim to pay dividends of KRW 6,319,465 to the non-applicant 1,8,352,951 and notify that he transferred the above claims to the Republic of Korea." However, the applicant appealed the appeal.

3. Examining these facts in light of the aforementioned legal principles, the Respondent’s changing the purport of the claim into the claim for the transfer and notification of transfer of dividends in the lawsuit on the merits of the provisional seizure of this case is only the same way to resolve disputes over facts of living or the same economic interest, and it cannot be said that there is a change in the basis of the claim. However, the changed claimant’s claim for the transfer and notification of transfer of dividends is seeking a doctor’s statement. This is not a right to enforce a compulsory execution based on a monetary claim, but it is not a preserved claim to preserve execution by provisional seizure. Accordingly, the effect of the provisional seizure of this case where the claim for the return of unjust enrichment before changing the purport of the claim is a preserved claim, namely, the changed claim for the claim for the transfer and notification of transfer, cannot be said to affect the preservation of compulsory execution for the right to “claim for the transfer and notification of the transfer” of the claim for the provisional seizure of this case.

In addition, the claim for the return of unjust enrichment before the modification cannot be acknowledged unless the applicant has actually received the dividend. Therefore, the provisional attachment of this case cannot be deemed to continue to exist for the claim for the return of unjust enrichment before the modification.

Therefore, it is reasonable to view that the provisional seizure of this case should be revoked when the reason for provisional seizure has ceased to exist, or circumstances have changed.

4. Nevertheless, the court below determined that there was no change in circumstances in the provisional seizure of this case on the ground that the applicant ordered the respondent to return unjust enrichment to the respondent in the principal lawsuit of the provisional seizure of this case on the premise that the applicant is obligated to return unjust enrichment to the respondent, and dismissed the application for revocation of provisional seizure of this case against the respondent. In light of the above legal principles, the court below erred by misapprehending the legal principles on revocation of provisional seizure due to changes in circumstances, which affected the judgment

5. Therefore, without further proceeding to decide on the remainder of the grounds of reappeal, the part against the respondent in the judgment below is reversed, and that part of the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Chang-suk (Presiding Justice)