Whether or not receiving repayment of the obligation based on the right to collateral security, which is null and void of the cause, constitutes unjust enrichment

Since the registration of establishment of a collateral security is a registration which is void of the cause, the third acquisitor of the real estate on which the collateral security was established is not aware that the collateral security is invalid, and even if the third acquisitor of the real estate on which the collateral security was established pays the secured debt by subrogation of the debtor in order to prevent the execution of the collateral security, it cannot be said that there is no legal ground for the repayment.

Articles 741 and 745 of the Civil Act

Plaintiff

Seoul Special Metropolitan City Agricultural Cooperatives

Seoul Central District Court (76 Gohap4008) in the first instance trial

The plaintiff's appeal is dismissed.

Expenses for appeal shall be borne by the plaintiff.

The plaintiff's attorney shall revoke the original judgment.

The defendant shall pay 1,532,703 won to the plaintiff.

The judgment that the lawsuit cost shall be borne by the defendant and the declaration of provisional execution are sought.

On the other hand, the court below rejected the above provisional registration of the non-party 2, 13-28, 113-28, 113-28, 113-6, 13-28, 13-28, 13-28, 13-3, 13-3, 3 Hobbs, 13, 13-3, 3, 144 (hereinafter all the above land and buildings are owned by the non-party 1, and the above real estate was first owned by the non-party 1, 473, 4465, 2, which was the Seoul High Court's receipt of the ownership transfer registration of the above real estate under the name of the non-party 2, which was declared to be the non-party 2, and the non-party 2, whose ownership transfer registration of the above real estate was revoked by the non-party 2, who was the first instance court's claim for cancellation of the above provisional registration of the above real estate under the name of the defendant 17.

First, the plaintiff's attorney did not bear any obligation against the defendant, and did not know that the registration of the establishment of the above neighboring mortgage in the name of the defendant as to the real estate was null and void, and paid 1,532,703 won to the defendant by mistake. The defendant made unjust enrichment on the above amount without any legal ground, and the plaintiff suffered losses from the above amount, and thus the defendant claims that the plaintiff should return it to the plaintiff. Thus, since the above establishment of the establishment of the establishment of the above neighboring mortgage is null and void, the plaintiff's third party is also entitled to the debt of the non-party 2, unless there are special circumstances where the above debt against the defendant exists against the non-party 2. Thus, the defendant's repayment of the debt by the non-party 2 does not constitute a legal ground.

Next, in the judgment of the first instance court on the lawsuit against the plaintiff and the defendant, the plaintiff's legal representative declared that the court dismissed the registration of establishment and provisional registration on the real estate above that was made in the name of the plaintiff and the defendant on the ground that the plaintiff knew that the lawsuit was maintained at the higher court and caused mistake that the plaintiff subrogated to the defendant of the non-party 2 for the payment of the above amount. Thus, the plaintiff's legal representative argued that the payment of the above amount was revoked and paid by mistake, but the repayment cannot be subject to cancellation because it is not a juristic act in its nature. Thus, the above assertion premised on the revocation is without merit.

Finally, immediately after the judgment of the court of first instance against the plaintiff 1's plaintiff and the defendant was rendered, the above lawsuit is maintained in the first instance court, and the plaintiff 3, who is an employee of the defendant's association, must be cancelled by the registration of establishment of a mortgage and provisional registration in the name of the plaintiff and the defendant, in the higher court, and the above judgment becomes final and conclusive. In the case where the above judgment becomes final and conclusive, the defendant will return the amount that the plaintiff paid to the plaintiff as the repayment of the defendant's obligation to the plaintiff. Thus, the plaintiff requested the plaintiff to pay for the defendant 2's obligation on behalf of the plaintiff 2 to prevent the successful bid to others by auction. Under the above implied special agreement between the defendant 3 and the defendant's agent, the above lawsuit was confirmed to be invalid by both the registration of establishment of a mortgage, provisional registration and ownership transfer registration in the higher court, and the above lawsuit was confirmed to have been returned to the plaintiff. Thus, the defendant cannot be asserted that the plaintiff's subrogation of the plaintiff's obligation to the plaintiff 2.

Therefore, the plaintiff's claim against the principal lawsuit shall be dismissed because there is no reason to do so. The original judgment with the same conclusion is just, and the defendant's appeal is without merit, and the costs of appeal are assessed against the losing party and it is so decided as per Disposition.

Judge Jeon Byung-hee (Presiding Judge)