It is recognized that the claim for return of unjust enrichment is recognized with respect to the amount distributed by invalid collateral security.

Since the amount received by a null and void collateral security has been obtained without any legal ground, it shall be returned to the creditor in priority.

Article 740 of the Civil Act / [Unjustifiable Profit]

Gwangju District Court Decision Magpo-2018-Ban-51134

Korea

KimA

Pleadings without Oral Proceedings

May 9, 2018

1. The defendant transferred to the plaintiff the right to claim for payment of deposit money of the Gwangju District Court 2017 GeumO deposit account, and submitted a notification of transfer to the Republic of Korea (the public official of the competent Gwangju District Court Gwangju District Court Gwangju District Court ) to the plaintiff of the right to claim for payment of deposit money.

2. The costs of the lawsuit are assessed against the defendant.

The same shall apply to the order.

1. Indication of claim;

The reasons for the attached Form shall be as shown in the attached Form.

2. Judgment without holding any pleadings (Articles 208 (3) 1 and 257 of the Civil Procedure Act);

1. The plaintiff's preserved claim;

The plaintiff's taxation claims against the non-party A are as follows:

The E.M.

Jurisdiction

Tax Offices

Items of Taxation

Reversion

Deadline for payment

Current arrears

This tax (1)

(B)Additional dues (B)

Joint (=++B)

Potables

Tax Offices

Transfer Income Tax

2010

June 30, 2010

101,740,940

102,000,200

203,741,140

Transfer Income Tax

2014

December 31, 2015

204,798,710

62,668,300

267,467,010

Total

471,208,150

(unit: Won)

The director of the tax office under the Plaintiff’s jurisdiction notified the Nonparty of the transfer income tax of KRW 151,949,760 (payment deadline, June 30, 2010) for the year 2010, and KRW 204,798,720 (payment deadline, December 31, 2015) for the transfer income tax of the year 2014 (the payment deadline, December 31, 2015), but the Nonparty’s payment was made only KRW 50,208,820 among the transfer income tax for the year 2010, and the Nonparty’s payment was made on January 15, 2018.

2. The defendant's collateral security claim and the voluntary auction of immovables;

On July 16, 2004, the non-party LA completed the registration of establishment of a mortgage (the maximum claim amount of KRW 700,000,000, the mortgagee, the defendant, and the non-party LA) on the real estate listed in the attached list owned by the defendant as the OOO of the Gwangju District Court (refer to the evidence A).

On the other hand, on the other hand, on December 29, 2015, the above real estate has commenced auction with the voluntary decision on commencement of auction (case No. 2015 OOO, creditor Industrial Bank) by the Gwangju District Court Branch of Gwangju District Court, and on February 13, 2017, the sale of the real estate was transferred to Nonparty Gamba (sale price No. 271,280,000) (see evidence No. 4 through 6).

3. Distribution and deposit of dividends;

1) Confirmation of distribution schedule

The distribution schedule was finalized to distribute 2,235,830 won, 197,301, 307 won, and 67,920,247 won to the defendant who is the third mortgagee to the Industrial Bank of Korea, which is the third mortgagee. As a result, on February 1, 2011, the real estate listed in the attached list was seized and on February 11, 2016, which was before the end of the auction case, requested the Gwangju District Court to support the distribution of the real estate was excluded from the distribution (see evidence 5 through 6).

2) Deposit of dividends to the Defendant

On the other hand, the Defendant did not receive 67,920,247 won of dividends recognized in the above voluntary auction case, and the Gwangju District Court Gwangju District Court, on April 13, 2017, deposited KRW 67,921,359 with the 2017 Geumju District Court, Gwangju District Court, Gwangju District Court, as the Defendant on April 13, 2017 (see evidence 7-1 to 2).

4. Unjust gains;

1) Meanwhile, the fact that the Defendant’s right to collateral security established on the real estate listed in the separate sheet was completed on July 16, 2004, and that the period of prescription for the preserved claim has been confirmed as having been expired. The fact that the Defendant did not submit documents for the report of claim and that the dividend distributed to the Defendant was deposited in the Ganju District Court in the Ganju District Court, Gwangju District Court, Gwangju District Court, Gwangju District Court (OO) voluntary auction case (OO in 2015), by sending official documents to the Y Gwangju District Court, was confirmed (see evidence 5 and evidence 7 through 8-1).

2) Accordingly, the Plaintiff-affiliated regional tax office sent a written questioning to the Defendant on December 14, 2017 in order to verify the expiration of the extinctive prescription of claims by mail. The Defendant, upon receipt of postal items on December 18, 2017, has no reply to the written questioning by the present date of the lawsuit (see subparagraphs 1 through 9-2 of the Evidence A).

3) The Supreme Court held that the preferential creditor who did not receive a distribution has the right to claim the return of unjust enrichment against the person who received the distribution in case where the person who received the distribution did not receive the distribution and received the distribution did not confirm the right under substantive law (Supreme Court Decision 96Da51585 delivered on February 14, 1997).

4) The Defendant’s right to collateral security established on the real estate stated in the attached list was established on July 16, 2004. At the time of April 6, 2017, the date of voluntary auction for the 2015 Gwangju District Court Gwangju District Court (OOO), the Defendant’s right to collateral security, at the time of April 6, 2017, has expired ten years after the expiration of the extinctive prescription period of civil claims under Article 162 of the Civil Act. Therefore, the Defendant’s right to collateral security established on the real estate stated in the attached list in the attached list in the name of Nonparty LA, was extinguished by

(v)The dividends distributed to the Defendant in the Ganju District Court of Gwangju District (2015 MagyeongOO) have the obligation to return to the Plaintiff, a senior creditor, the dividends received without legal cause in accordance with the provisions of Article 741 of the Civil Code, as unjust enrichment.

5. Conclusion

As above, the dividend received by the Defendant is the unjust enrichment received without any legal ground, and is obligated to return it to the Plaintiff, which is the senior creditor, and thus, the claim in this lawsuit was filed to return it.