The Credit Guarantee Fund (Attorney above-at-law)

Korea-U.S. Asset Management (L., Counsel for the plaintiff-appellant)

August 27, 2013

1. The defendant shall pay to the plaintiff 99,73,514 won with 5% interest per annum from December 14, 2012 to March 22, 2013, and 20% interest per annum from the next day to the day of complete payment.

2. The costs of the lawsuit are assessed against the defendant.

3. The above paragraph (1) can be provisionally executed.

The same shall apply to the order.

1. Basic facts

A. Right to the real estate of this case

1) The Nonparty acquired the ownership of August 4, 1994, in total, 6,545 square meters of forests and fields ( Address 1 omitted), 54,645 square meters of forests and fields ( Address 2 omitted), and 185,256 square meters of forests and fields ( Address 3 omitted) in Seosan-si (hereinafter “instant real estate”).

2) As to the instant real estate on May 25, 1995, Korea Bank (SP Bank Co., Ltd.) established the right to collateral security (hereinafter “instant right to collateral security”) for KRW 200 million with the maximum debt amount and the debtor Han Chang Industrial Co., Ltd. (hereinafter “instant right to collateral security”). Thereafter, the instant right to collateral security and the right to collateral security were transferred prior to the transfer, and transferred to DNA M&C lending Co., Ltd. on August 11, 2011.

B. Progressing the auction case of this case

1) On October 13, 201, upon the application of DNAMM CF Loan Co., Ltd., a voluntary auction on the instant real estate was initiated ( Daejeon District Court Branching Daejeon District Court Decision 201Hu5574, hereinafter “instant auction case”).

2) In the instant auction case, on November 1, 201, the Plaintiff filed a report on the right and demand for distribution as a creditor holding an executory exemplification (the final judgment No. 2007Kadan67521, August 19, 2008) with the person holding the provisional seizure of the instant real estate on November 1, 201, and the Plaintiff filed a demand for distribution on November 18, 201, pursuant to the Seoul Western District Court Decision No. 2009Ga74079, Apr. 13, 201.

3) On May 17, 2012, Hyundai Mutual Savings Bank, Inc., acquired the instant collateral security claims from DNA M&C Loan Co., Ltd., and reported this to the instant auction court.

4) Around May 2, 2012, the Defendant acquired the claim based on the Seoul Western District Court Decision 2009No74079 Decided April 13, 2010 from the IMC Loan Co., Ltd., and reported the right to the instant auction court on July 3, 2012.

5) The distribution schedule was prepared on August 17, 2012 in the instant auction case, and the details of dividends are as follows (hereinafter referred to as “the creditors who received dividends in the sixth order of priority in the instant auction case, including the original and the Defendant, refers to the creditors who received dividends in the sixth order of priority, and KRW 148,417,809 (hereinafter referred to as “instant dividends”).

- The amount to be actually distributed: 293,50,498 won (the amount to be distributed plus the execution cost);

In the case of Hyundai Mutual Savings Bank Co., Ltd. 148,417,417,809 148,417,817,809 35,780,780 35,780,780,200 363,490,3649,490,3649,490,109,1589,109,3649,362,490, 490, 3649, 490, 490, 490, 305, 205, 205, 3649, 205, 109, 205, 365, 490, 490, 390, 930, 930, 770, 579, 479, 100, 579, 2848

C. Progress of the instant lawsuit of demurrer against the distribution

1) On August 17, 2012, the Defendant appeared on the date of distribution, and raised an objection against the total amount of dividends of Hyundai Mutual Savings Bank, and on the same day, filed a lawsuit of demurrer against the distribution against the Hyundai Mutual Savings Bank, Daejeon District Court Branching 2012Kahap501 (hereinafter “instant case of demurrer against distribution”).

2) On November 23, 2012, in the instant case of objection to the distribution, the lower court rendered a ruling of recommending reconciliation with the following contents, and the Defendant received all the dividend of 148,417,809 won on December 13, 2012 in accordance with the corrected distribution schedule.

- The distribution amount of KRW 148,417,809 for Hyundai Mutual Savings Bank Co., Ltd. among the distribution schedule prepared on November 23, 2011 in the distribution procedure for a real estate compulsory auction case No. 201-a-a-be 5574, Daejeon District Court Mcksan Branch 201, and the distribution amount of KRW 4,251,157 against the defendant shall be corrected to KRW 152,68,967, respectively.

[Grounds for Recognition] Facts without dispute, Gap evidence Nos. 1-6, Eul evidence Nos. 1-3, 8, 9 (including each number), the purport of the whole pleadings

2. The assertion and judgment

A. Determination on the cause of the claim

1) The execution of distribution pursuant to the final distribution schedule does not become final and conclusive under the substantive law. Thus, in a case where a creditor who is liable to receive distribution did not receive the distribution and received the distribution, the creditor who did not receive the distribution shall have the right to claim the return of unjust enrichment against the person who received the distribution, regardless of whether he raised an objection to the distribution, and the creditor who did not receive the distribution shall not be deemed to be a general creditor, and the creditor who did not receive the distribution shall not be deemed to be a general creditor. In addition, the judgment is only effective since the lawsuit of demurrer against distribution is merely to resolve the dispute over the amount of distribution between the opposing parties, and it is only effective to the party concerned in the lawsuit. Thus, even in a case where a creditor received the distribution pursuant to the distribution schedule corrected by the final and conclusive judgment in favor of the lawsuit of demurrer against the distribution, if the distribution is deemed to have received the distribution as the result of the other creditor who did not have received the distribution, the other creditor entitled to claim the return of unjust enrichment against the creditor who received the distribution in accordance with the final and conclusive judgment in favor of the lawsuit of distribution (see Supreme Court Decision 296.

2) Although Hyundai Mutual Savings Bank’s claim on the instant collateral security was extinguished by prescription, KRW 148,417,809 was distributed to Hyundai Mutual Savings Bank in the instant auction case, and the Defendant’s filing of a lawsuit of demurrer against Hyundai Mutual Savings Bank against Hyundai Mutual Savings Bank and received the said KRW 148,417,809 additionally, or it is recognized by the purport of Gap’s evidence, Eul’s evidence, and evidence Nos. 3 and 7 (including the serial number) and all pleadings.

According to the above legal principles, 148,417,809 won of the dividends of Hyundai Mutual Savings Bank should be distributed to the creditors of the first six ranked creditors in proportion to each claim amount: 9,73,514 won (=148,417,809 won x 1) 8,338,249,849 won x 2) 12,408,514,744 won, and below Won 12,408,514,744 won should be ultimately attributed to the plaintiff among them (the defendant's assertion that there is no causation between the plaintiff's losses and the defendant's profits). Nevertheless, the defendant's additional dividends to this part should be distributed to the defendant without any legal grounds, and therefore the plaintiff has the right to claim a return of unjust enrichment against the defendant (the defendant's assertion that no causation exists between the plaintiff's losses and the defendant's profits).

B. The judgment of the defendant as to the defendant's argument (the following arguments are discussed in the judgment as to the grounds of the claim as mentioned above, and the defendant is dissatisfied with them, so detailed below is examined).

1) Whether there exists “damage” against the Plaintiff

① Although the Defendant rendered a decision to commence the auction on the instant collateral, for which the statute of limitations has expired, the Defendant asserts that the Plaintiff may not be deemed to have suffered damage from the Defendant’s distribution, in light of the following: (a) the obligor and owner of the instant collateral security (Supreme Court Decision 2001Da3580, Jun. 12, 2001, etc.); and (b) the instant dividend does not naturally belong to the creditors at the time of the instant distribution; and (c) the Plaintiff renounced its right to invoke the extinctive prescription by failing to raise any objection against the amount of distribution of the Hyundai Mutual Savings Bank on the date of distribution; and (b) in light of the fact that the Plaintiff renounced its right to invoke the extinctive prescription on the date of distribution of the instant collateral

In light of the above, since the period of prescription has expired as a matter of course (see Supreme Court Decision 65Da2445 delivered on January 31, 1966, etc.), the right to collateral of this case should be terminated as a matter of course (see Supreme Court Decision 65Da2445 delivered on January 31, 196) and the right to collateral of this case should also be cancelled by side nature, Hyundai Mutual Savings Bank, Inc. should naturally return to the debtor's responsible property, and ② the potential and abstract right of general creditors holding the debtor's responsible property as a right to specific property through participation in the distribution procedure. As such, the general creditors participating in the procedure prior to the completion date of the demand for distribution have the right to claim the distribution of this case, which is the debtor's responsible property, and the plaintiff is deemed to have infringed upon the debtor's specific right to the amount of dividends of this case, which is the debtor's responsible property, and since the distribution schedule established in Hyundai Mutual Savings Bank, the debtor waiver of the right to claim extinctive prescription cannot be concluded.

2) Whether the Defendant obtained “no legal ground”

A) The assertion that there exists a separate legal ground for filing a lawsuit of demurrer against distribution

The defendant asserts that since the defendant received dividends as a result of filing a lawsuit of demurrer against distribution, there are legal grounds, and that if the plaintiff's claim for unjust enrichment is recognized, the other party to unjust enrichment shall be expanded to a third party, thereby recognizing the exclusive right

The above argument by the defendant is not only explicitly against the Supreme Court precedents recognized earlier, but also because the lawsuit of demurrer against distribution is only against the parties to the lawsuit, the defendant's winning the lawsuit of demurrer against distribution cannot be viewed as a legal ground in relation to the plaintiff, not the parties to the lawsuit. Furthermore, whether the plaintiff and the defendant have a legal ground for receiving the dividend of this case between the plaintiff and the defendant should be determined according to their distribution order in relation to their debtor. As seen earlier, it is reasonable to view that the defendant's receiving the dividend in excess of the above ratio is not a legal ground in relation to the plaintiff, even though the plaintiff and the defendant should receive the dividend of this case in proportion to their claim amount as a general creditor in the same order. Therefore, this part of the defendant's assertion

B) The assertion that there are separate legal grounds such as a ruling of recommending reconciliation.

The defendant asserts that, since a compromise in court has a creative effect, if a compromise is made, the relationship of rights and obligations based on the previous legal relationship is extinguished. The defendant asserts that there exists a legal ground of the decision of recommending a compromise.

The scope of the creative effect of a settlement, such as lives and judicial reconciliation, is limited to the matters agreed upon by the parties to confirm and confirm mutual concessions, and such effect does not take effect as to the matters which had not been proved by the parties, and which have not yet been understood as the premise of reconciliation (see, e.g., Supreme Court Decision 9Da17319, Apr. 27, 2001). The decision on the recommendation of settlement in this case merely appears to have a creative effect on whether the dividends in this case accrue between Hyundai Mutual Savings Bank and the Defendant, and it does not seem to have an effect on the legitimacy of dividends based on the instant collective security, which serves as the premise thereof. Accordingly, the Defendant’s assertion on this part is

C) Claim that there exists a separate agreement between Defendant and Hyundai Mutual Savings Banks

The defendant asserts that since there exists a separate agreement with Hyundai Mutual Savings Bank, thereby making a decision of recommending reconciliation in the lawsuit of demurrer against distribution, the defendant's profits earned by the defendant cannot be viewed as having obtained profits without legal grounds, since they are based on the aforementioned separate agreement.

It is difficult to readily conclude that there exists a separate agreement between the Defendant and Hyundai Mutual Savings Bank, solely on the basis of the descriptions of the evidence Nos. 7 and 8 (including the serial number) submitted by the Defendant. Furthermore, even if there exists an agreement, the creation effect only pertains to the ownership of the instant dividend. Therefore, the Defendant’s assertion on this part is

3) Whether the instant claim violates the principle of trust and good faith

① The Defendant asserts that the instant claim was unlawful since it violated the principle of trust and good faith, in light of the following: (a) 17-18 years have elapsed since the date of distribution of the instant case’s right to collateral security at the time of the date of distribution; (b) the Plaintiff appeared on the said date of distribution and raised an objection against the Defendant; and (c) the Plaintiff claimed in this case against the Defendant 10 times the amount distributed to the Defendant as the Defendant won in a lawsuit of demurrer to distribution with his own effort and expenses; (b) however, solely on the sole basis of the Defendant’s assertion, the instant claim does not violate the principle of trust and good faith; and (c) there is no evidence to acknowledge it otherwise.

C. Sub-committee

Therefore, the Defendant, as a return of unjust enrichment, is obligated to pay the Plaintiff the legal interest or delay damages at the rate of 5% per annum prescribed by the Civil Act from December 14, 2012 to March 22, 2013, the delivery date of a copy of the complaint of this case, and 20% per annum prescribed by the Act on Special Cases concerning the Promotion, etc. of Legal Proceedings from the next day to the date of full payment (see Supreme Court Decision 87Meu768, Aug. 18, 1987, etc.).

3. Conclusion

Thus, the plaintiff's claim of this case should be accepted on the grounds of its reasoning, so it is so decided as per Disposition.

Judges Kang Jin-hee

1) The Plaintiff’s claim amount

Note 2) The aggregate of the claims of the sixth creditors

3) The right to file a claim for restitution of unjust enrichment against a third party in a case where contractual performance comes to the benefit of a third party as well as the other party to the contract, is related to whether the party who performed the performance has the right to claim restitution of unjust enrichment against the third party. Thus, the Defendant cannot be deemed to have received the dividend of this case due to the contractual performance. Thus, the discussion of the right to