Korea Technology Finance Corporation (Attorney Lee In-hee, Counsel for defendant)

Korea

Korea Credit Guarantee Fund (Law Firm Multilura, Attorneys Park Gi-sung, Counsel for defendant-appellant)

June 28, 2007

Seoul Western District Court Decision 2006Da70731 Decided February 8, 2007

1. The plaintiff's appeal is dismissed.

2. The plaintiff's selective claims added in the trial are dismissed.

3. The costs of the lawsuit after the appeal shall be borne by the plaintiff.

The judgment of the court of first instance shall be revoked. The defendant shall pay to the plaintiff 35,363,978 won and an amount calculated by the rate of 20% per annum from the day following the day of service of the complaint of this case to the day of complete payment, or the defendant shall deposit 48,67,476 won with the above court according to the Seoul Western District Court's 2006TTTTT652 claims seizure and collection order, and shall report the reasons therefor (the plaintiff shall be entitled to selective addition to the plaintiff's claim seeking the deposit of the money to be collected and the report of the reasons therefor

1. Basic facts

A. On October 19, 200, the Industrial Bank of Korea established the right to collateral security of the non-party 3 corporation with respect to the apartment of this case (hereinafter "the apartment of this case") owned by the non-party 1 in Yongsan-gu, Seoyang-si (hereinafter "the apartment of this case"), the maximum debt amount of which is 230,000,000 won, and the debtor's non-party 3 corporation with respect to the apartment of this case (hereinafter "the apartment of this case"), around December 27, 2004, filed an application for a voluntary auction of the apartment of this case (hereinafter "the auction case of the real estate of this case") with the court of the Republic of Korea in Yangyang-gu, Busan-si (hereinafter "the apartment of this case"). On August 24, 2005, the above assistance was prepared in the order of 38,303,528 won, which is the last priority of the dividends amounting to the non-party 2 of this case, 48,136088 won (hereinafter "the dividends of this case").

B. On August 10, 2005, the date of the above distribution date, the plaintiff received a provisional disposition prohibiting the disposal of the claim against the non-party 2's claim to the Republic of Korea (the plaintiff's supplementary intervenor; hereinafter "the Republic of Korea") as to the non-party 2's claim to pay dividends of this case on August 10, 2005, and on November 10, 2005, the Seoul Central District Court 2005Gahap140 decided that "the non-party 1 paid damages for delay from October 21, 2004 to the plaintiff 135,232,787 won and the non-party 135,232,787 won to the non-party 2 and the non-party 1 notified the non-party 1 of the provisional disposition revoking the claim's claim to the non-party 2 and the transfer of the claim of this case."

C. On August 12, 2005, the date of the above distribution date, the defendant also received a provisional disposition prohibiting the collection and disposal of the claim against the non-party 2 as to the claim to pay the dividends of this case against the non-party 2 on August 12, 2005. On October 6, 2005, the Seoul Central District Court 2005Gahap37098 decided that "the non-party 1 paid damages for delay from October 29, 2004 to the plaintiff 51,485,480 won and 50,547,623 won among them, and the non-party 2 and the non-party 1 revoked the mortgage contract of this case between the non-party 2 and the non-party 1 on February 17, 2004. The non-party 2 was notified of the intention to pay the dividends of this case and notified the transfer of the claim to the Republic of Korea."

D. On the other hand, around September 7, 2005, the staff in charge of the auction of the Goyang branch of the Goyang branch court deposited the instant dividend in accordance with Article 160 of the Civil Execution Act, on the ground that the Defendant was subject to the collection of the claim against Non-Party 2 regarding the instant dividend payment claim against the Republic of Korea and the decision of provisional disposition prohibiting the collection and disposal of the claim (the above Order 2005Kadan5045) as the cause of deposit.

E. On February 6, 2006, the Defendant received 48,677,476 won of the dividend of the instant case deposited in Yangyang branch of the Seoul Western District Court under the above collection order on March 21, 2006, which was transferred by Nonparty 1 to Nonparty 2 pursuant to the Seoul Central District Court Decision 2005Gahap37098 (hereinafter “instant seizure and collection order”). The Defendant received 48,67,476 won of the instant dividend of this case, which was deposited in Yangyang branch of the Seoul Central District Court under the above collection order.

[Ground for Recognition: Facts without dispute, Gap 1 through 4, each entry of Eul 1 through 5 (including each number; hereinafter the same shall apply), and the purport of whole pleadings]

2. Claim for restitution of unjust enrichment and determination thereof

A. The plaintiff's assertion

At the time of receiving the order of seizure and collection of the claim of this case, the defendant was fully aware that the plaintiff had a claim for reimbursement against the non-party 1 as well as the defendant. Thus, the defendant is obligated to deposit the above collection amount in the court of execution so that it can be distributed proportionally according to the amount of claim against the plaintiff and the non-party 1 according to the amount of claim of this case. The above collection amount was appropriated for the repayment of the claim for reimbursement against the non-party 1 without depositing the above collection amount. Accordingly, the defendant has the obligation to pay the plaintiff the amount of 35,363,978 won, which should have been distributed to the plaintiff out of the above collection amount, without any legal ground. Accordingly, the defendant is obligated to pay the plaintiff the amount of damages equivalent to the above amount of the above collection amount, which is 35,363,978 won, as the return of unjust enrichment.

B. Determination

However, even if the plaintiff was aware that the plaintiff had the claim for reimbursement against the non-party 1 at the time when the defendant was subject to the seizure and collection order of this case, as alleged by the plaintiff, such circumstance alone cannot be viewed as bearing the obligation to deposit the collection amount in the executing court so that the collection amount received by the defendant under the seizure and collection order of this case can be distributed to the plaintiff and the defendant in distribution.

Rather, comprehensively taking account of Articles 236(2) and 247(1)2 of the Civil Execution Act, unless there are special circumstances such as the Plaintiff’s provisional attachment or seizure of the dividend payment claim of this case or demand for distribution of the dividend payment claim of this case to the Seoul Western District Court, which is the executing court of the seizure and collection order of this case, before receiving the amount of the collection order from the above court under the seizure and collection order of this case’s claim, the Defendant may appropriate the entire amount of the collection amount received under the seizure and collection order of this case’s claim to the non-party 1 for the repayment of the claim of this case’s claim of this case’s claim of this case’s claim of this case’s claim of this case’s claim of this case’s claim of this case’s claim of this case’s claim of this case’s 3 through 5, and the whole purport of the pleading’s statement and arguments, the above decision of the Seoul Western District Court’s claim of this case’s claim of this case’s claim of this case’s claim of this case’s case’s 20 to the above payment order of this case’s claim.

Therefore, the plaintiff's claim for return of unjust enrichment premised on a different view is without any reason to examine the remainder of the claim.

3. Claim for the deposit of collection money and judgment thereon

A. The plaintiff's assertion

The plaintiff had already seized the claim to pay the dividend of this case before the defendant collected the dividend of this case under the order to seize and collect the claim of this case and filed a report on the collection with the court, and demanded the Seoul Western District Court to distribute the claim to pay the dividend of this case. Thus, the defendant is obligated to deposit the full amount of the above collection and report the reasons therefor in accordance with Article 236(2) of the Civil Execution Act.

B. Determination

Therefore, as to whether the plaintiff attached the claim to pay the dividend of this case to the Seoul Western District Court or demanded the distribution of the claim to pay the dividend of this case before the collection of the dividend of this case was reported to the court under the order of seizure and collection of the claim of this case, there is no evidence to acknowledge it, and rather, there is no evidence that the defendant received the collection money in accordance with the order of seizure and collection of the claim of this case and then the plaintiff seized the claim to pay the dividend of this case to the above court or demanded the distribution of the above claim to the above court.

Therefore, there is no reason for the plaintiff's claim for deposit of collection money and report of its reason to the defendant.

4. Conclusion

Therefore, all of the plaintiff's claims shall be dismissed as it is without merit, and the judgment of the court of first instance which dismissed the plaintiff's claim for return of unjust enrichment is justified as it is so decided, and the plaintiff's appeal is dismissed as well, and the plaintiff's claim for the deposit of collection money which is selected in the trial is also dismissed as per Disposition.

Judges Kim number (Presiding Judge)