[1] Whether the school site and teachers of a kindergarten constitute a fundamental property prohibited from selling and selling it to others and offering it as security pursuant to Article 28 (2) of the Private School Act (affirmative)

[2] Whether the acquisition of a claim constitutes an interest as a requisite for establishing unjust enrichment (affirmative), and the method of exercising the right to claim a return of unjust enrichment against the claim to pay dividends

[1] Since the school site and teacher of a kindergarten are prohibited from selling and selling it to others and offering it as security pursuant to Article 28(2) of the Private School Act, the establishment registration of a mortgage for the school site and the building site and building that are teachers of a kindergarten is null and void because it violates the Private School Act, and is null and void, and the registration of ownership transfer awarded in the auction procedure that is conducted based on an invalid establishment registration

[2] [1] In the case of paragraph (1), the owner of the above site and building shall be deemed to have caused damage to the successful bidder by acquiring a claim for the dividend payment as to the dividend distributed to him/her by the auction court without any cause. Therefore, the owner of the above site and building shall return the claim for unjust enrichment to the successful bidder, and shall transfer the above claim for dividend payment to him/her, and shall perform the procedure for notifying the transfer of the claim for dividend payment to the non-party

[1] Article 28 (2) and / [2] Articles 449 and 741 of the Civil Act

[1]

Supreme Court Decision 97Da10857 delivered on May 28, 1997 (Gong1997Ha, 1985) and Supreme Court Decision 97Da33683 delivered on December 12, 1997

[2] Supreme Court Decision 95Da22061 delivered on December 5, 1995 (Gong1996Sang, 200), Supreme Court Decision 96Da3409 delivered on November 22, 1996 (Gong197Sang, 32)

Damage Award

[Judgment of the court below] and four others (Attorney Han-chul et al., Counsel for plaintiff-appellant)

1. The plaintiff

A. In the case of voluntary auction at a party member 96 Dogyeong8290, the Defendant U290, transferred a claim for dividend payment of KRW 27,291,853, which was distributed to the same Defendant by a party member, and the Nonparty who is the debtor (the other party member other than the revenue and expenditure under the jurisdiction of the party member in cash account)

B. Defendant Boan Central Credit Union shall pay 67,410,446 won per annum for Defendant Boan Central Credit Union, 10,750,000 won for Defendant Uanan Central Credit Union, 6,267,142 won for Defendant Uanan Central Credit Union, 267,142 won for Defendant Uanan Central Credit Union, 6,267, and 15 percent per annum for each of the above amounts from January 13, 1998 to April 23, 14 of the same year, and 25 percent per annum for each of the above amounts from the following day to the full payment.

2. The plaintiff's remaining claims against the defendants are dismissed.

3. The costs of lawsuit shall be borne by the defendants.

4. Paragraph 1.b. The provisional execution may be effected.

1. A. Paragraph (a) and the Plaintiff; Defendant Boan Central Credit Union shall pay the amount of KRW 67,410,446 as well as the amount of KRW 5% per annum from December 20, 1996 to the delivery date of a copy of the complaint of this case; KRW 25% per annum from the following day to the full payment date; KRW 10,000 as for Defendant Boan Livestock Cooperatives, KRW 10,000,000, and the amount of KRW 5% per annum from March 21, 1997 to the delivery date of a copy of the complaint of this case; and KRW 25% per annum from the following day to the full payment date; and jointly and severally with Defendant Yuan Central Credit Union shall pay the amount of KRW 1,750,00 as well as KRW 6,267,142 as well as KRW 5% per annum from the following day to December 21, 1996 to the full payment date.

1. Facts of recognition;

The following facts may be acknowledged in light of the whole purport of the pleadings in the statements Nos. 1-1, 2, 2-10, and 11-1 through 5 of Gap evidence Nos. 1-2, 2-2, and 11-5, and there is no counter-proof.

A. From March 24, 1983 to each real estate listed in the [Attachment List (hereinafter the site and building of this case) the Defendant established and operated the YY under the name of the same defendant on the land of this case (the name of the same defendant on April 27, 1989) with the permission of the YY, and newly constructed the YY on the land of this case on June 10, 1989 and registered the preservation of ownership in the above defendant's future, used the building of this case as an infant, and repaired and extended the building of this case as the building of this case on February 16, 1993. The above defendant was a kindergarten under Article 85 of the Education Act with the approval of the head of the education office of the YYY, and used the building of this case as the site and the site of the YYG.

B. However, on March 15, 1995, the above defendant registered the establishment of a mortgage on the building site of this case with the debtor Kim Young-young, the maximum debt amount of KRW 70,000,000, and the creditor Boan Central Credit Union, and the plaintiff was awarded a successful bid for the building site of this case on September 30, 1996 and completed the registration of the transfer under the name of the plaintiff on November 12, 1996.

C. In the distribution procedure of the above auction case, Defendant Boan Central Credit Union was paid KRW 67,410,446 on December 20, 1996; KRW 10,000,00 on March 21, 1997; and KRW 1,750,000 on December 21, 1996 to Defendant Yuan Central Credit Union; Defendant Yuan Central Credit Union was paid KRW 33,58,965 on December 20, 196 to the owner of the land and building in this case; Defendant Yuan Central Credit Union was paid KRW 6,273,262 on December 26, 192, which was distributed to Defendant Yuan Central Credit Union, and KRW 27,295,00 on December 21, 1996; and Defendant Yuan Central Credit Union was paid KRW 33,58,965 on December 20, 200 to the accounting official other than the revenue and expenditure.

D. After that, as the land and building in this case are prohibited from being sold and offered as security to other persons pursuant to Article 28(2) of the Private School Act as the land site and the building site of Pungyang kindergarten managed by the above defendant against the plaintiff, the above defendant's establishment registration of the above neighboring mortgage made in the future of the defendant Yan National Credit Union in relation to the land and building in this case is null and void since it violated the Private School Act, and the above establishment registration of the above neighboring ownership was awarded in the auction procedure conducted with the invalid establishment registration, and the above establishment registration of the ownership was filed in the auction procedure conducted with the plaintiff, and the party members filed a lawsuit seeking the cancellation thereof (the plaintiff 97dan92) against the above defendant on March 19, 197. However, on July 4, 1997 (the Daejeon District Court Decision 97Na3109), the above defendant's judgment was revoked in the appellate court (the plaintiff's appeal became final and conclusive on December 36, 197).

2. Determination as to the claim against the defendant's male name

As the cause of the instant claim against the above defendant, the above defendant was entitled to claim for dividend withdrawal of KRW 6,273,262 out of the amount distributed in the above distribution procedure based on the executory exemplification of the judgment with the executory power over the claim for reimbursement of reimbursement claim No. 96Gae3244 against the defendant's compensation rule, and the above defendant was paid the above amount by receiving seizure and order of the claim. Since the above defendant is not a legitimate creditor, the defendant's name did not receive the above amount from the successful bid price paid by the plaintiff without any legal cause, and thus the defendant's old-Nam should return the above amount and its delay damages to the plaintiff as unjust enrichment. Thus, the above defendant's above cannot appear at the date of pleading even if he was duly summoned by service by public notice, but it is not clearly disputed because he did not submit a written reply and other preparatory documents. Thus, it shall be viewed as a confession.

Thus, from January 13, 1998 to April 23, 1998, the above defendant's name is obligated to pay to the plaintiff the damages for delay at the rate of 5 percent per annum under the Civil Act and 25 percent per annum under the Act on Special Cases concerning the Promotion, etc. of Legal Proceedings from the next day to the full payment date. (The plaintiff's name sought payment of damages for delay from December 21, 1996, but the plaintiff filed a claim for performance prior to the filing of the lawsuit, or there is no assertion or proof that the above defendant is a malicious beneficiary.)

3. Determination as to the claim against Defendant Boan Central Credit Union, Defendant Boan Livestock Industry Cooperatives, and Defendant Soan-young

According to the above facts, since the above defendants obtained profits equivalent to the amount received as a dividend in the above auction procedure and thereby caused damages to the plaintiff, the above defendants shall be deemed to have suffered losses equivalent to the above amount. Thus, the defendant 67,410,46 won is unjust profits, the defendant Yanananan National Credit Union shall be 10,000 won, the defendant Yananan National Credit Union shall be 1,750,000 won, the defendant Yanan National Credit Union shall be 1,750,000 won, and each of these shall be 1,750 won on the record that the copy of the complaint of this case is clearly delivered to the above defendants, and since January 13, 198, the defendant Yan National Credit Union shall be 14 of the same month, and since April 23 of the same year, the above defendants shall not be able to pay damages for delay to the plaintiff from the day after the above judgment was rendered, or the plaintiff's damages for delay shall not be paid to the plaintiff 2.

4. Determination as to the claim against the Defendant’s conviction

According to the above facts, the above defendant shall be deemed to have suffered losses equivalent to the amount of the above claim amounting to KRW 27,291,853, which the auction court distributed to the above defendant and kept at the same court without any cause. Thus, the above defendant shall be obligated to transfer the claim amounting to KRW 27,291,853, which the members distributed to the above defendant as the return of the claim amounting to unjust enrichment, to the above defendant, and to perform the notification procedure of the transfer of the above claim amount (see Supreme Court Decision 96Da3409, Nov. 22, 196).

On the other hand, since the plaintiff did not have sufficient means to return the above unjust enrichment, the defendant's salary rule was jointly and severally liable with the above defendants to return each of the above unjust enrichment and delay damages against the plaintiff. However, apart from the claim for damages against the defendant's salary rule in the future, it cannot be deemed that the defendant's salary rule is jointly and severally liable to return the above defendants' unjust enrichment itself. Thus, this part of the plaintiff's claim against the defendant's salary rule cannot be accepted.

5. Conclusion

Therefore, the plaintiff's claim against the defendants of this case is justified within the scope of the above recognition, and each of the remaining claims is dismissed as it is without merit. It is so decided as per Disposition.

Judges Lee Sung-ho (Presiding Judge)