Whether the right to claim a return of unjust enrichment is recognized where a creditor who has the right to claim a preferential reimbursement under substantive law, such as wage creditors, fails to make a lawful demand for distribution (negative)

A creditor demanding a distribution under Article 605(1) which is applied mutatis mutandis under Article 728 of the Civil Procedure Act may receive a distribution only when he/she makes a lawful demand for distribution by the successful bid date. In cases where a legitimate demand for distribution has not been made, even though he/she is the creditor having the right to demand a preferential reimbursement under substantive Acts, such as wage claims, cannot receive a distribution from the proceeds of the successful bid. Therefore, if the distribution schedule is prepared and confirmed and the distribution has been made in accordance with the final and conclusive distribution schedule as he/she did not make a lawful demand for distribution, unlike the case of a person having the right to demand a preferential payment who has a right to demand a distribution as to the exchange value of the object of execution, if he/she makes a legitimate demand for distribution, the amount equivalent to the amount that could have been received a distribution has been distributed to the creditor, which is subordinate

Article 741 of the Civil Act; Articles 605(1) and 728 of the Civil Procedure Act; Article 30-2 of the Labor Standards Act

[Plaintiff-Appellant-Appellee] Plaintiff 1 and 1 other (Law Firm Gyeong, Attorneys Park Jong-soo et al., Counsel for plaintiff-appellant-appellant-appellee)

[Defendant-Appellant] Plaintiff 1 and 63 others (Attorney Shin Jong-sung, Counsel for defendant-appellant)

Korea Assets Management Corporation (Attorney Chang-ho et al., Counsel for defendant-appellant)

Daegu High Court Decision 94Na7233 delivered on May 25, 1995

The judgment below is reversed. The case is remanded to the Daegu High Court.

The grounds of appeal are examined.

1. According to the reasoning of the lower judgment, the lower court recognized the following facts based on the evidence employed by the relevant judgment.

On November 14, 1990, the Korea Development Bank (hereinafter referred to as the “Non-Party Bank”) entered into an additional mortgage agreement with Non-Party Il-mix Co., Ltd. (hereinafter referred to as the “Non-Party Company”) with a maximum debt amount of KRW 2,680,00,000 and USD 1,100,000 for the instant real estate. On November 15, 1993, the Non-Party Company failed to pay the above secured debt, and the Non-Party Company transferred the above secured debt to the Defendant, and completed the additional registration prior to the above secured debt transfer to the Defendant on June 23, 1993. On July 23, 199, the Defendant applied for the auction on the instant real estate at the Daegu District Court's Sung-gu District Court's assistance 93,000,000 and paid the auction proceeds to the Defendant on March 36, 194, and paid the auction proceeds after deducting all the expenses.

Meanwhile, even though the plaintiffs worked as an employee for the non-party company until March 2, 1993 in which the non-party company defaulted, they did not receive wages for the last three months and retirement allowances after March 29, 1989, as stated in the judgment of the court below.

The court below recognized the above facts and determined based on them as follows.

The payment of dividends pursuant to the final and conclusive distribution schedule does not confirm the substantive rights, but does not confirm the plaintiffs' wages for the last three months and retirement allowances claims after March 29, 1989 under Article 30-2 (2) of the Labor Standards Act. Therefore, the defendant receiving the entire successful bid price of the above real estate and appropriating the plaintiffs for the repayment of claims against the non-party company with priority in payment of claims against the non-party company is in violation of the above wage and retirement allowances claims granted priority to the plaintiffs, thereby making profits without legal grounds, and thereby causing damages to the plaintiffs. Thus, the defendant, barring special circumstances, accepted the plaintiffs' claim for restitution of unjust enrichment on the ground that the defendant is liable to return the above unpaid wage and retirement allowances equivalent to the above unpaid amount to the plaintiffs

2. Since the execution of a distribution according to the final distribution schedule does not confirm the right under substantive law, in case where a person who has to receive a distribution fails to receive a distribution and receives a distribution without receiving the distribution, the preferential creditor who has not received the distribution shall be deemed to have the right to claim the return of unjust enrichment against the person who has received the distribution. However, in case where the distribution is made by the auction date, the creditor who has the right to demand the distribution under Article 605(1) which is applicable mutatis mutandis under Article 728 of the Civil Procedure Act may receive the distribution only until the auction date. In case where a legitimate distribution is not made, even if the creditor has the right to demand the payment under substantive law, such as the wage claim, which is the plaintiffs' claim, even though he has the right to demand the distribution, he cannot receive the distribution from the auction price. Therefore, if the distribution was made by the creditor who did not make a lawful distribution and made the distribution in accordance with the distribution schedule, it shall not be deemed that there was no legal cause for the creditor to receive the distribution.

However, according to the records, the plaintiffs' failure to make a demand for distribution in the auction procedure of this case, and it can be known that the distribution schedule was prepared and confirmed as being excluded from the distribution, and that the distribution was conducted in accordance with the finalized distribution schedule. Thus, the amount equivalent to the amount which the plaintiffs could have received in the case of legitimate demand for distribution was distributed to the defendant who is a subordinate creditor, and it cannot be deemed that there was no legal ground.

Nevertheless, the court below did not err in the misapprehension of legal principles as to the right to claim the return of unjust enrichment against the plaintiffs who did not make a legitimate demand for distribution, and it is clear that this affected the conclusion of the judgment. The part pointing this out in the grounds of appeal is with merit.

3. Therefore, without examining the remaining grounds of appeal, the judgment of the court below shall be reversed, and the case shall be 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.

Justices Park Jong-chul (Presiding Justice)