(영문) 서울동부지방법원 2015.12.16 2015나22528

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(영문) 서울동부지방법원 2015.12.16 2015나22528

부당이득금반환

Text

1. The plaintiff's appeal and the conjunctive claim added in the trial are all dismissed.

2. After an appeal is filed.

Reasons

1. The reasoning of the court's explanation concerning this case is as follows, except for adding the plaintiff's assertion and judgment as to the conjunctive claim added in the trial at the court of first instance, and thus, it is identical to the ground of the judgment at the court of first instance. Thus, it is citing this as it is in accordance with the main sentence of Article 4

【Judgment on Preliminary Claim】

A. The Defendant alleged by the Plaintiff was distributed KRW 29,436,983 in the dividend procedure of this case by virtue of the collection order of this case.

However, prior to filing a report on collection of KRW 29,436,983 that the Defendant received in the distribution procedure, the Plaintiff or the mobile decoration applied for a demand for distribution against the Defendant’s collection amount. Therefore, the Defendant is obligated to deposit the said distributed money and report on the grounds therefor under Article 236(2) of the Civil Execution Act.

B. Under Article 236(2) of the Civil Execution Act, when there has been another seizure, provisional seizure or demand for distribution prior to making a report on collection with respect to the amount collected by the collection creditor, the creditor shall immediately deposit the amount collected and report the reasons therefor. If the creditor who has completed the collection fails to perform the deposit obligation even though there exists competition, such as seizure, etc., the creditor may file a lawsuit demanding that the other concurrent creditor deposit the amount collected against the collection creditor and report the reasons therefor.

However, in the case of this case, as seen earlier, the Defendant did not collect the execution claim from the obligor under the collection order of this case, but merely received part of the amount deposited by the competition of seizure and paid out and received the dividend amount, and thus, there does not occur any separate obligation to deposit and report. Thus, the Plaintiff’s assertion is without merit.

2. In conclusion, the plaintiff's primary claim and the conjunctive claim added at the trial are all dismissed as it is without merit.

참조조문

-민사소송법 제420조

-민사집행법 제236조 제2항

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