In a case where Byung bank, which filed a request for auction based on the first and second collateral security and the third collateral security with the debtor Eul as Eul corporation, submitted a claim statement and entered only the secured claims of the first and second collateral security in the list of secured claims; the claims specified in the claim statement were distributed only to Byung bank, and the remainder was distributed to the State, which is the junior issuing authority, and the distribution schedule was established and confirmed, filed a claim for restitution of unjust enrichment against the State, the case holding that the court below erred by misapprehending the legal principles in holding that Byung bank, which is the creditor applying for auction based on the third collateral security, shall distribute the amount of claims calculated by the data submitted at the time of preparation of the distribution schedule within the scope of the secured claims stated in the registration certificate and the amount of claims stated in the auction application against Byung bank, which is the creditor applying for auction based on the third collateral security, in accordance with the order of priority; on the contrary, the amount of claims

Article 741 of the Civil Act; Articles 145(2), 149, 150, 264, and 268 of the Civil Execution Act; Article 81 of the Civil Execution Rule; Article 192 subparag. 1 and 2 of the Civil Execution Rule; Article 194 of the Civil Execution Act

Industrial Bank of Korea (Law Firm Spah, Attorneys Lee Jae-in et al., Counsel for the plaintiff-appellant)

Korea

Seoul Central District Court Decision 201Na44053 Decided December 23, 2011

The judgment below is reversed, and the case is remanded to the Seoul Central District Court.

The grounds of appeal are examined.

1. The lower court, citing the reasoning of the first instance judgment, determined that insofar as the Plaintiff received dividends of KRW 151,913,831 as stated in the statement of claim submitted to an auction court, even if the amount that the Plaintiff would have received would have received if the Plaintiff claimed was distributed to the Defendant, a junior creditor, could not be deemed as unjust enrichment without any legal ground.

2. However, it is difficult to accept the above determination by the court below for the following reasons.

A. According to the reasoning of the judgment of the court of first instance and the evidence duly admitted by the court below, ① the debtor with respect to the real estate owned by the non-party is KRW 72,00,000, and KRW 84,000 with respect to KRW 84,00,00, and the establishment registration of a mortgage over the second-class and the second-class debtor is at KRW 120,000,000; ② the registration of a mortgage over the third-class debtor was completed with respect to the establishment of a mortgage over the third-class debtor; ② on June 21, 2010, the plaintiff submitted an application for an auction with the claim amount of KRW 276,00,000 to the non-party, KRW 136,992,05 and its interest on the non-party, KRW 160,000 with respect to the claim amount of KRW 365,00,00,000 with respect to the non-party's dividends amount of KRW 1636,3636,016,016,16,20.

B. According to the above facts, the Plaintiff, who was otherwise established the first, second, and third-class collateral with the obligor of the instant real estate, filed a request for auction on the basis of each of the above sub-mortgages, and submitted only a statement of claims concerning the secured claims of the first, second-class collateral with respect to the obligor of the non-party, but did not submit a separate statement of claims concerning the third-class collateral with respect to the obligor’s new development. Thus, the auction court should have distributed the amount of claims calculated by the data, etc. submitted to the Plaintiff, who is the obligee requesting auction based on the third-class collateral, within the scope of the claimed amount indicated in the certificate of registered claims and the amount of claims indicated in the

C. Nevertheless, the lower court dismissed the Plaintiff’s claim for restitution of unjust enrichment against the Defendant by deeming that the instant distribution schedule, which distributed to the Defendant, a junior creditor, was duly formulated, with the exception of the Plaintiff’s claim regarding the third-class collateral security (excluding the distribution of the Plaintiff’s claim regarding the third-class collateral security). In so doing, the lower court erred by misapprehending the legal doctrine on the calculation of dividend amount

3. Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kwon Soon-il (Presiding Justice)