Priority of dividends of persons entitled to provisional registration for security;

Even if a person having the right to the provisional registration for security who has the right to preferential reimbursement fails to report his/her claim by the deadline for claiming a distribution, and was distributed to subordinate creditors, it shall not be deemed to have any legal grounds

Special Cases concerning auction, etc. under Article 16 of the Provisional Registration Security Act

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 40 million won with 5% interest per annum from July 3, 2006 to the delivery date of the complaint of this case, and 20% interest per annum from the next day to the day of full payment.

1. Basic facts

(1) On August 12, 2005, ○○○○-dong 000-0 0000 Do 00000 Do 0000 (hereinafter “the apartment of this case”) with respect to the auction application by the ○○○○ Electric Corporation, ○○○○○ District Court 000 Do 0000 Do 0000 (Dual) (hereinafter “the auction procedure of this case”) (hereinafter “the auction procedure of this case”), a compulsory auction for real estate was commenced and the compulsory auction registration was completed.

(2) On July 3, 2006, when a court of execution distributes the amount of 286,164,333 won, which is the date of distribution, which is the actual distribution, after deducting the execution cost from the sale price, the court of execution prepared a distribution schedule with the content that distributes the amount of 158,60 won to ○○ City Mayor, 159,228,379 won to ○○ Bank, 2nd order, 79,795,066 won to ○○ Savings Bank, 3rd order, 13,80,436 won to ○○○ Tax Office under the defendant's jurisdiction, and 33,181,852 won to ○○ Tax Office. The above distribution schedule became final and conclusive around that time.

Each entry in Category A 3 and 6 and the purport of the whole pleadings (applicable to recognition)

2. Judgment on the plaintiff's assertion

A. Summary of the assertion

The plaintiff did not make a demand for distribution by the date of completion of the demand for distribution on the grounds that the execution court did not distribute the plaintiff's dividends to the head of ○○ Tax Office and the head of ○○ Tax Office except for the plaintiff's dividends. Thus, the defendant asserted that the amount distributed by the defendant is unjust enrichment without any title and sought the return thereof to the defendant.

B. Determination

(1) Facts of recognition

If Gap 3, Eul 1, and 3-1 collected the purport of the whole pleadings, the plaintiff completed the registration of the right to demand a transfer of ownership on November 2, 2004 with respect to the apartment of this case on the same day, and the court of execution decided on August 25, 2005 the completion period for the right to demand a distribution of the auction procedure of this case on November 15, 2005, and the plaintiff filed a report of the right and the right to demand a distribution on April 28, 2006, after the completion date of the right to demand a distribution.

(2) Relevant provisions

Article 84 (1) of the Civil Execution Act provides that when a seizure following the decision on commencing auction has become effective (excluding cases where another decision on commencing auction has already been made prior to the said decision on commencing auction), the court of execution shall set the completion period to demand a distribution prior to the first sale date, taking into account the period required for the procedure," and Article 88 (1) provides that "a creditor who has an executory exemplification, who has a provisional seizure subsequent to the registration of the decision on commencing auction, or who has the right to demand a preferential reimbursement under the Civil Act, the Commercial Act, the Commercial Act, and other Acts, may demand a distribution."

In addition, Article 16 (2) of the Provisional Registration Security Act provides that "if the right to provisional registration for security made prior to the registration for seizure ceases to exist by sale, the creditor may receive a delivery of the proceeds of sale or payment only if he has reported a claim."

Therefore, in a case where a legitimate demand for distribution has not been made, even a creditor who has the right to demand a preferential reimbursement under the substantive law is not entitled to receive a distribution from the proceeds of the successful bid (Supreme Court Decision 2001Da11055 Decided January 25, 2002). In addition, if the distribution schedule is prepared and confirmed to exclude the creditor who has the right to demand a distribution from the distribution because he did not make a lawful demand for a distribution and the distribution has been carried out in accordance with the final distribution schedule, if he did not make a lawful demand for a distribution, the amount equivalent to the amount which he could have received a lawful demand for a distribution has been distributed to the subordinate creditor, and it cannot be deemed that there exists no legal cause (Supreme Court Decision 98Da12379 Decided October 13, 198).

C. In light of the above relevant provisions and their legal principles, even if the snow company is a person entitled to a provisional registration for security for which the Defendant has the right to preferential reimbursement under the substantive law, the distribution schedule prepared by the court of execution, excluding the Plaintiff who did not report the claim by the time the completion period for the demand for distribution prescribed in the instant auction procedure, has become final and conclusive, and the Defendant received the Defendant’s distribution through the execution of the distribution in accordance with the established distribution schedule. Therefore, the Defendant

3. Conclusion

Thus, the plaintiff's claim of this case is dismissed for reasons.