Until the period for demand for distribution, qualification to receive the distribution shall be lost unless the legitimate demand for distribution is made.

First of all, the creditor shall be deemed to have the right to claim the return of unjust enrichment against the person receiving the distribution, or unless he makes a lawful demand for distribution until the final period for the demand for distribution, he shall lose his qualification to receive the distribution from the proceeds of sale, and the defendant shall be deemed to have received

2012 Ba6247 Return of Fraudulent Gains

HongA

Korea

April 9, 2013

April 23, 2013

1. The plaintiff's claim is dismissed.

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

The defendant shall pay to the plaintiff 00 won with 20% interest per annum from the day following the day of service of a copy of the complaint of this case to the day of complete payment.

1. Basic facts

A. BBBto Co., Ltd. (hereinafter “BBBto”) newly constructed BBBBBB apartment on the ground of 000 OBBB apartment (hereinafter “the apartment of this case”) in the Dondo-Do, Ydo-do-Eup, Ydo-do. On May 28, 2002 between the National Bank of Korea (hereinafter “National Bank”) and the National Bank of Korea (hereinafter “National Bank”), set up a right to collateral security with a maximum claim amount of KRW 000 on the apartment site of this case. On July 25, 2003, the establishment registration was completed with the content that adds the entire apartment of this case, which is an aggregate building, to the object of the said right to collateral security.

B. On September 23, 2004, the National Bank of Korea: Gwangju District Court Gwangju District Court 2004 Maz. 2004

According to 7934, the auction procedure for each of the above real estates was conducted by applying for the auction of real estate (hereinafter referred to as "the auction of this case") for the real estate stated in the attached list.

C. On August 11, 2009, the date of distribution of the instant auction procedure, the distribution court, in the order of 1st order on the list in the attached Table and small tenants, who actually distributed 00 won after deducting the execution cost from the sale price. The distribution court, in the order of 2nd order on the creditor of the right to demand distribution who made a payment of a part of the right to collateral security, 3rd order on the creditor of the right to demand distribution, 4th order on the Korea Labor Welfare Corporation, 5th order on the creditor of the right to demand distribution, and distributed the remaining remaining amount to the defendant who is the holder of the right to deliver the distribution, as shown in the attached Table, as described in

D. The plaintiff paid in full the sales price for 101 Dong 305 among the apartment buildings of this case, but when the auction procedure was in progress at the Gwangju District Court Gwangju District Court 2004tanam Branch 11681 on the real estate, the plaintiff subrogated for 27,852,380 won to the National Bank on July 29, 2005, and mortgaged mortgage for the above real estate.

After termination, the registration of ownership transfer for the real estate was completed on December 20, 2005.

E. Meanwhile, in the instant auction procedure, the Plaintiff did not report the right as a subrogation or demand a distribution.

[Ground of recognition] Facts without dispute, Gap evidence 1 through 6, Eul evidence 1 and 2, the purport of the whole pleadings

2. The plaintiff's assertion and judgment

A. The plaintiff's assertion

The Plaintiff is a person who partially subrogated the obligation of the National Bank against BBB Land, and thus, should have received dividends as a matter of course in the above distribution procedure, but due to the lack of legal knowledge, it was excluded from dividends by failing to report a demand for distribution and a right in the auction procedure of this case, but the distribution schedule does not confirm the substantive legal rights. Therefore, the Defendant should return 00 won which the Plaintiff could have received if he had lawfully received a demand for distribution.

B. Determination

Since the execution of distribution by the finalized distribution schedule does not confirm the substantive right under the substantive law, in case where a person who fails to receive a distribution 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 received the distribution. However, a creditor who demands a distribution under Article 88(1) of the Civil House Administrative Court Act may receive the distribution only when he/she makes a demand for distribution by the completion period for the demand for distribution under Article 84 of the Civil House Administrative Court Act. In cases where a creditor who has the right to demand a distribution fails to make a lawful demand for distribution, even though he/she is the creditor who has the right to demand a preferential payment under the substantive law, it cannot receive the distribution, as it is excluded from the distribution due to the failure to make a lawful demand for distribution, and if the distribution was conducted pursuant to the finalized distribution schedule, the plaintiff cannot be deemed to have obtained a legitimate demand for distribution under the Civil Court No. 1063, Feb. 25, 1997.

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit. It is so decided as per Disposition.