Plaintiff (Law Firm Tae, Attorneys Kim Nam-soo et al., Counsel for plaintiff-appellant)

Seoul High Court Decision 201Na1448 delivered on August 1, 201

March 30, 2017

Busan District Court Decision 2014Gahap102639 Decided June 3, 2016

1. All appeals filed by the plaintiff and the defendant are dismissed.

2. The costs of appeal shall be borne by each party.

1. Purport of claim

The defendant shall pay to the plaintiff 461,962,206 won with 5% interest per annum from September 12, 2015 to the delivery date of the application for amendment of the purport of the claim of this case, and 15% interest per annum from the next day to the day of complete payment.

2. Purport of appeal

A. The plaintiff

Of the judgment of the first instance, the part against the plaintiff falling under the part ordering additional payment shall be revoked. The defendant shall pay to the plaintiff 337,234,079 won with 5% per annum from September 12, 2015 to the service date of the application for modification of the claim of this case, and 15% per annum from the next day to the day of complete payment.

B. Defendant

The part of the judgment of the first instance against the defendant shall be revoked, and the plaintiff's claim corresponding to the revocation shall be dismissed.

1. Quotation of the first instance judgment

A. The quoted part

The reasoning for this Court’s reasoning is as follows: (a) the court affirmed the first instance judgment as stated in the following B; and (b) the argument of the plaintiff and the defendant in the trial is identical to that of the first instance judgment, except for adding the judgment under paragraph (2) below to the judgment under the main sentence of Article 420 of the Civil Procedure Act. Therefore, it is acceptable to

B. Parts used for repair;

1) Of the third table 1, the number of "10 units" in the 24 column shall be changed to "6 units".

2) Article 10 India and Article 6 of the non-acceptance column Nos. 4 of the fourth Schedule 2 shall be applied mutatis mutandis to the issuance of Article 6 and Article 10 to the rejection of acceptance.

2. The further determination of this Court

A. The plaintiff and the defendant's assertion

1) The plaintiff's assertion

A) Claim for damages due to tort

Although Nonparty 4 or the Plaintiff attempted to enforce compulsory execution against each of the above movables listed in the separate sheet No. 1, it was decided to prohibit disposal of each of the above movables, or the Defendant refused to deliver each of the above movables, and thus did not receive delivery of each of the above movables. Therefore, the Defendant is obligated to keep each of the above movables with the care of a good manager until the delivery of each of the above movables is made to Nonparty 4 or the Plaintiff. However, the Defendant breached the above care duty, and thus, the Plaintiff is liable to pay KRW 172,632,00 in total to the Plaintiff, who is the owner of the above movables, or who acquired the damage claim against the Defendant for each of the above movables

B) Claim for restitution of unjust enrichment

① If the Defendant occupied each movable property listed in Nos. 6, 8, 9, and 24 in the separate sheet Nos. 6, 8, 9, and 24, but intended to escape from the obligation to return unjust enrichment on the ground that it did not have any substantial benefit, the Defendant ought to prove that it did not have any substantial benefit.

② Therefore, the Defendant is obligated to return to the Plaintiff the sum of KRW 23,837,525 (the amount equivalent to the usage fees of each movable set forth in the said No. 6 and No. 8) equivalent to the said movable property from December 1, 2011 to January 13, 2015 (the amount equivalent to each movable set forth in the said No. 8,934,255 + KRW 5,956,170 + KRW 5,956,170 equivalent to the usage fees of the movable set forth in the said No. 24) as unjust enrichment.

2) The defendant's assertion

In light of the fact that Nonparty 1 was awarded the instant movable property in KRW 86,450,00, and Nonparty 3 purchased the instant movable property from Nonparty 1 in KRW 140,000,00, and Nonparty 4 purchased the instant movable property from Nonparty 3 in KRW 50,000, the result of the market price appraisal of the instant movable property as of December 1, 201 by the appraiser of the first instance trial was overassessment of the transaction value of the instant movable property.

B. Determination

1) As to the Plaintiff’s assertion

A) As to the claim for damages caused by a tort

In the auction procedure for corporeal movables, the enforcement officer shall permit the highest bidder to sell the corporeal movables, and deliver the proceeds of sale to the buyer in compliance with the proceeds of sale (Article 205 of the Civil Execution Act), and the buyer shall acquire the ownership when the proceeds of sale are delivered in accordance with the proceeds of sale.

In light of the above legal principles, Nonparty 1 purchased each of the above movables listed in the separate sheet No. 1, the original possession of the Defendant, at the auction procedure, and acquired ownership. As seen earlier, Nonparty 1, at the same time, acquired ownership by taking over each of the above movables from the execution officer at the same time as the above sale price was paid. However, a civil lawsuit is deemed to have been instituted to seek delivery of the above movables by refusing to occupy again the above movables sold to Nonparty 1. However, it is difficult to view that the Defendant is obliged to keep each of the above movables with the care of a good manager.

In addition, the non-party 1 and his successor have the right to claim the delivery against the defendant who is an illegal occupant by acquiring the ownership of each movable set forth in the separate sheet No. 1. Thus, even if the third party asserted a legitimate right and received a provisional injunction against the defendant, such circumstance alone cannot be deemed as an obstacle to receiving the provisional injunction from the defendant. Even if there is no evidence that the defendant, in collusion with the above provisional injunction holder, received a false provisional injunction in order to obstruct the delivery execution by the third party.

Therefore, the plaintiff's assertion of tort on the premise that the defendant has the obligation to preserve each movable set forth in the separate sheet No. 1 is without merit.

B) As to the claim for restitution of unjust enrichment

It is true that the Defendant deemed a real benefit by using each movable set forth in Nos. 6, 8, 9, and 24 set forth in the separate sheet Nos. 2 List 6, 8, 9, and 24 is a requirement for unjust enrichment, and thus, the Plaintiff bears the burden of proving a claim for return of unjust enrichment against the Defendant. However, the Plaintiff did not prove this. Rather, each movable mentioned in the separate sheet Nos. 6, 8, and 9, which was kept in the inner warehouse of the place of business before August 8, 2014, was dismantled, as seen earlier. Therefore, even though the Defendant occupied each of the said movable, it cannot be said that the Defendant obtained any more substantial benefit by using it. Therefore, this part of the Plaintiff’

2) As to the defendant's argument

A) As long as the appraiser’s appraisal method is against the rule of experience or unreasonable, etc., the appraiser’s appraisal method should be respected unless there exist significant errors, such as where the appraisal method is against the rule of experience or unreasonable (see Supreme Court Decision 2006Da67602, Jul. 9, 2009,

B) As of December 1, 201, the result of the market price appraisal of the instant movable property by the appraiser of the first instance trial as of December 1, 201 is considerably different from the bid price or the purchase price of the instant movable property. However, given the characteristics of the instant movable property established and used at the casino business place, the fact that the purchase price is much lower than the market price is determined in the auction procedure for the instant movable property, and the Defendant’s illegal possession of the instant movable property, inasmuch as the purchase price was determined under the circumstances, this would have to be lower than the market price. In addition, there is no other circumstance to deem that there was a special error in the process of the selection of the appraiser of the first instance trial or the specific process of appraisal. Accordingly, the circumstance asserted by the Defendant alone is insufficient to deem that the market price of the instant movable property was excessively assessed. Accordingly,

3. Conclusion

Therefore, the judgment of the court of first instance is legitimate, and the appeal by the plaintiff and the defendant is dismissed as it is without merit.

[Attachment]

Judges Yoon Jin-he et al. (Presiding Judge)