[1] The method of exercising the right to preferential reimbursement by the mortgagee by exercising the subrogation right, and whether the mortgagee may claim the return of unjust enrichment against other creditors who acquired the benefit where the mortgagee fails to exercise the subrogation right (negative)

[2] In a case where a senior mortgagee was paid compensation by a local government, which is a junior right holder, based on the seizure of local tax in arrears during the period of not exercising the right of subrogation for the expropriation of land subject to mortgage, the case holding that the senior mortgagee cannot claim the compensation against the local government for the unjust enrichment

[1] The proviso of Article 370 and Article 342 of the Civil Act provides that a mortgagee shall seize money or other things to be paid or delivered by the mortgagee in order to exercise the subrogation right is to maintain the specific nature of the claim which is the object of subrogation and preserve its validity, and at the same time not to inflict any damage on the third party. Thus, as long as money or other things which are modified objects of the mortgaged object have already been seized by a third party and have already been specified as money or things, the mortgagee may exercise the subrogation right and obtain preferential repayment from the general creditor even if the mortgagee did not seize them. However, the method of exercising the right of subrogation is either to submit documents proving the existence of the security right in accordance with Article 273 of the Civil Execution Act to the court of execution, to request the seizure and order, or to demand a distribution in accordance with Article 247(1) of the Civil Execution Act. Therefore, the registration of the secured right cannot be obtained from the compensation, and even if the mortgagee fails to exercise the subrogation right, it cannot be obtained from other creditors or creditors.

[2] In a case where a senior mortgagee was paid compensation by a local government, which is a junior right holder, based on the seizure of local tax in arrears while he did not exercise the subrogation right on the land subject to mortgage, the case holding that the senior mortgagee cannot claim the compensation against the local government for unjust enrichment

[1] Articles 342, 370, and 741 of the Civil Act; Articles 247(1) and 273 of the Civil Execution Act / [2] Articles 342, 370, and 741 of the Civil Act; Articles 247(1) and 273 of the Civil Execution Act

[1] Supreme Court Decision 94Da25728 delivered on November 22, 1994 (Gong1995Sang, 71) Supreme Court Decision 98Da12812 delivered on September 22, 1998 (Gong1998Ha, 2552) Supreme Court Decision 2002Da33137 delivered on October 11, 2002 (Gong2002Ha, 2704)

Plaintiff 1 and one other (Law Firm Young-jin, Attorneys Song Jae-sik et al., Counsel for the plaintiff-appellant)

Busan Metropolitan Government Annual Organization (Attorney Choi Byung-jin, Counsel for the plaintiff-appellant)

Korea Land Corporation (Law Firm Dongdong, Attorneys Kim Woo-hee, Counsel for the plaintiff-appellant)

March 11, 2009

1. The plaintiff's claim against the primary defendant and the conjunctive defendant is dismissed, respectively.

2. The costs of lawsuit shall be borne by the Plaintiff.

The claim against the primary defendant: the primary defendant shall pay to the plaintiffs 114,173,00 won with 5% per annum from August 8, 2008 to the delivery date of a copy of the complaint of this case, and 20% per annum from the next day to the day of complete payment.

The conjunctive defendant's claim against the conjunctive defendant: 114,173,00 won and 5% interest per annum from August 8, 2008 to the delivery date of a copy of the complaint of this case, and 20% interest per annum from the next day to the day of complete payment.

1. Basic facts

The following facts are not disputed between the parties, or acknowledged by Gap's evidence 1, 2, 4, Eul's evidence 2, 4, 6, Eul's evidence 7-1 through 3, Eul's evidence 8-1, 2, Eul's evidence 9-1 through 4, Eul's evidence 10-1 through 4, Eul's evidence 10-1, 11, and Eul's evidence 11.

A. On April 7, 1994, the plaintiffs completed the registration of creation of a mortgage over the maximum debt amount of KRW 700 million to the debtor, the mortgagee, the plaintiffs, and the maximum debt amount of KRW 700 million with respect to the non-party 2, the non-party 1 corporation was holding the non-party 1 corporation, and on August 16, 2002, the Busan Metropolitan City Office of Disposition issued a seizure of the land of this case on August 16, 2002 on the ground that the non-party 1 corporation did not pay the resident tax (pro rata corporate tax).

B. Preliminary Defendant filed an application for adjudication with the Central Land Tribunal on June 19, 2008 on the expropriation of the instant land as a site for a local industrial complex development project (the first general local industrial complex development project) and decided on August 12, 2008 on the expropriation of the compensation amounting to KRW 114,173,00 (hereinafter “instant compensation”) and the commencement date of expropriation.

C. As to the instant compensation claim, seizure under the Civil Execution Act and seizure under the Korea Deposit Insurance Corporation by a tax claimant, including the primary defendant, was made according to the disposition on default, and the conjunctive defendant paid the instant compensation to the primary defendant on August 7, 2008 on the ground that he is the seizure authority under the prior disposition on default.

Attachment Date of the seizure of the table contained in the main sentence, 126,852,810 won on December 5, 2007, 126,852,810 won on December 10, 2007, 2. 5,339,108,530 won on December 16, 2008; 3. 485,380 won on July 16, 2008; 4. 462,970 won on July 18, 2008; 5. 14,361, 230 won on July 14, 2008; 6. 50,000 won on August 4, 2008;

D. On August 7, 2008, the Plaintiffs received a claim seizure and collection order by subrogation for the instant compensation claim under Busan District Court 2008TTTT No. 2008TTTT13506, with the secured claim of KRW 700 million based on the above secured claim as the preserved claim, and the above order was served on the ancillary Defendant on the 12th of the same month, which is the date of commencement of expropriation.

2. Determination as to the claim against the primary defendant

A. Summary of the plaintiffs' assertion

Although the plaintiffs were entitled to preferential payment based on the subrogation as to the compensation of this case as the mortgagee, the primary defendant received the compensation of this case from the preliminary defendant without any legal ground and thereby suffered damages equivalent to the same amount. Thus, the primary defendant asserts that as unjust enrichment, the primary defendant is liable to pay the plaintiffs the compensation of this case as 114,173,000 won and delay damages.

(b) Markets:

However, Article 370 and the proviso of Article 342 of the Civil Act provide that a mortgagee shall seize money or other things to be paid or delivered by the mortgagee in order to exercise the right of subrogation is to maintain the specificity of the claim which is the object of subrogation, to preserve its validity, and not to inflict losses on the third party. Thus, insofar as money or other things which are modified objects of mortgage have already been seized by a third party and have already been specified as money or things, the mortgagee may obtain preferential reimbursement from the general creditor by exercising his right of subrogation without seizure. However, the method of exercising the right of subrogation can be submitted to the court of execution and submit documents proving the existence of the right of subrogation in accordance with Article 273 of the Civil Execution Act, and submit them to the court of execution, or demand a preferential reimbursement under Article 247 (1) of the Civil Execution Act. Thus, since the real right of collateral security cannot be obtained from the plaintiff's exercise without proceeding to exercise the right of subrogation, and as long as the plaintiff did not exercise the right of preferential reimbursement, it cannot be obtained from other creditors or 201.

3. Determination on the claim against the conjunctive defendant

A. Summary of the plaintiffs' assertion

The plaintiffs were asked for the method of receiving the compensation of this case to the non-party 3, who is the employee of the preliminary defendant on July 12, 2008, and the non-party 3 can receive the compensation if it seized the claim of this case before August 12, 2008, which is the commencement date of expropriation. Thus, the non-party 3 applied for the seizure and collection order of the claim by subrogation for the claim of this case on August 4, 2008. Thus, the non-party 3 has the duty of paying the compensation of this case to the non-party 3 under the good faith principle to protect the trust of the plaintiffs, and the non-party 3 is not aware of the person who is entitled to the compensation without negligence under Article 40 (2) of the Act on the Acquisition of Land, etc. for Public Works and the Compensation Therefor (hereinafter referred to as the "Public Works Act"), and therefore, the defendant asserts that the non-party 1 is liable to receive the compensation of this case to the non-party 4, which is the main claim of this case.

(b) Markets:

(1) Whether the duty under the good faith principle as to the timing of payment of the instant compensation exists

However, if an employee in charge of the project operator, who is employed by the project operator, deprived of the opportunity to exercise the right of subrogation from the secured party and caused the secured party to lose the right of preferential reimbursement as a result of the loss of the secured party's right of preferential reimbursement, even though the project operator set the guidelines for processing the affairs of the payment of the compensation and notified the secured party of the contents of the guidelines, unlike the guidelines for processing the affairs notified intentionally or by negligence, it shall be deemed that the employee's tort liability may be established (see Supreme Court Decision 98Da12812 delivered on September 22, 1998). However, the statement of evidence No. 5 and the testimony of the witness No. 3 alone set the guidelines for processing the affairs that Nonparty 3 would not pay the compensation of this case until August 12, 2008, or it is insufficient to recognize that the plaintiffs' trust was formed by notifying the plaintiffs of the contents of the guidelines. Thus, this part of the plaintiffs' assertion is without merit.

(2) Whether there is a duty to deposit the instant compensation

However, according to Article 41 of the National Tax Collection Act, Article 44 (1) 4 of the Enforcement Decree of the same Act, Article 25 (1) of the Enforcement Rule of the same Act, and Articles 227 and 229 of the Civil Execution Act, the seizure of monetary claims under the National Tax Collection Act and monetary claims under the Civil Execution Act are different in its effect. According to Articles 56 and 14 (1) of the National Tax Collection Act and Article 235 of the Civil Execution Act, where multiple seizures occur, the effect of the seizure is different. This difference is derived from the point that the procedure for disposition on default is a procedure for prompt satisfaction of tax claims by an administrative agency. In light of the difference between the effect of seizure and the Civil Execution Act, and difference between the procedure for disposition on default and the procedure for disposition on default, the defendant's deposit of monetary claims under the National Tax Collection Act and the procedure for disposition on default is not included in the judgment of the Supreme Court on the premise that the claims in this case are not included in the judgment of the Supreme Court.

4. Conclusion

Therefore, the claim of this case against the primary defendant and the conjunctive defendant is dismissed, since all of the claims of this case are without merit. It is so decided as per Disposition.

Judges Park Tae-tae (Presiding Judge)