Apum Savings Bank (Law Firm Democratic, Attorney White-soo, Counsel for the plaintiff-appellant)

Defendant 1

Defendant 2 and one other (Attorney Han-soo et al., Counsel for the defendant-appellant)

May 4, 2012

Seoul Central District Court Decision 2010Kahap123955 Decided October 27, 2011

1. The part against Defendant 1 in the judgment of the first instance shall be revoked;

2. The plaintiff's claim against the defendant 1 is dismissed.

3. The total costs of the lawsuit incurred between the Plaintiff and Defendant 1 and the costs of the lawsuit incurred after the lawsuit between the Plaintiff, Defendant 2 and Defendant 3 are assessed against each Plaintiff.

1. Purport of claim

Main: Defendant 1 notified the Plaintiff that he transferred to the Plaintiff the right to claim a payment for the amount allocated to Defendant 1 according to the distribution statement dated December 2, 2010 of the public sale procedure indicated in the attached claim list, and that he transferred the above claim to the Korea Asset Management Corporation.

Preliminary: Defendant 2 and Defendant 3 shall pay to the Plaintiff 50 million won each amount of KRW 500 million with 5% per annum from December 3, 2010 to the service date of a copy of the complaint of this case, and 20% per annum from the next day to the day of complete payment.

2. Purport of appeal

It is as set out in paragraphs 1 and 2 of this Decree.

1. Scope of adjudication of this court;

The Plaintiff’s primary claim of this case is the claim for restitution of unjust enrichment against Defendant 1, and the conjunctive claim of this case is the claim for restitution of unjust enrichment against Defendant 2 and Defendant 3 on condition that Defendant 1’s claim against Defendant 1 should be rejected. The court of first instance accepted the Plaintiff’s claim against Defendant 1 and dismissed all the Plaintiff’s claim against Defendant 2 and Defendant 3, and only Defendant 1 filed an appeal.

However, in view of the Plaintiff’s assertion, the primary claim of this case and the conjunctive claim of this case are legally incompatible claims generally accepted depending on the Plaintiff’s right to claim the return of unjust enrichment against Defendant 1, and are in a relationship of subjective and preliminary co-litigation pursuant to Article 70 of the Civil Procedure Act, so it is necessary to make a conclusion final and conclusive among all parties.

Therefore, even if only Defendant 1 filed an appeal against the judgment of the first instance court, the confirmation of the conjunctive claim against Defendant 2 and Defendant 3 is also prevented, and it is subject to the judgment by this court.

2. Basic facts

A. On March 23, 2007, the Plaintiff entered into a credit transaction agreement with the Nonparty on the amount of credit limit of KRW 1.39 billion and KRW 50 million, and loaned money to the Nonparty. On the same day, in order to secure the said loan obligation, the Nonparty completed the registration of creation of the right to collateral security (hereinafter “instant right to collateral security”) with respect to the Seoul Seocho-gu (hereinafter “instant real estate”) that was owned by the Nonparty, with the maximum debt amount of KRW 1.877 billion,000,000,000 to the Plaintiff.

B. On August 25, 2006, before the establishment of the instant right to collateral security, Defendant 1 had registered the right to collateral security (hereinafter “instant right to collateral security”) with the term of 1 billion won and 1 billion won until August 24, 2008. After the establishment of the instant right to collateral security, the registration of seizure by Seocho-gu Seoul Metropolitan Government and the registration of seizure by Goyang on June 5, 2008 was completed.

C. On April 30, 2010, the head of the Goyang Tax Office requested the Korea Asset Management Corporation to sell the instant real estate in accordance with Article 61 of the former National Tax Collection Act (amended by Act No. 10527, Apr. 4, 2011; hereinafter “National Tax Collection Act”) in order to collect the taxes against the Nonparty (the public sale procedure conducted by the above request for the public sale).

D. On July 14, 2010, the Korea Asset Management Corporation issued a public auction notification on the instant real estate (hereinafter “instant public auction notification”). The appraisal information column includes “the appraised amount of KRW 2.4 billion, the date of appraisal, the date of June 9, 2010,” “lease information: Defendant 1” in the lease information column, and “the details of chonsegwon: the first chonsegwon (registration, August 25, 2006; KRW 1.00 billion)” in the major information column of the register of the register, “the first chonsegwon (registration, August 25, 2006; KRW 1.872 billion), the second collateral (registration, March 23, 2007; KRW 1.872 billion); the third voluntary auction (Seoul Central District Court on August 1, 2007); the attachment order (Seo-gu Office, Seocho-gu, and December 24, 2007); thus, the purchaser was subject to a prior demand to cancel the terms of chonsegwon.”

E. Based on the content of the instant public auction notification, the Korea Asset Management Corporation notified the non-party, the owner of the instant real estate, and the owner of the right to lease on a deposit basis, mortgage, or other rights on the instant real estate, and Defendant 1, the mortgagee, received the notice of public auction around August 7, 2010.

F. On October 14, 2010, Defendant 2 and Defendant 3 bid for the sixth public auction of the instant public auction procedure at 1.2 billion won and received a decision of sale from the Korea Asset Management Corporation on October 15, 2010.

G. On December 2, 2010, the Korea Asset Management Corporation designated the distribution date as December 2, 2010 and notified the distribution subjects to submit a written request for distribution, a certificate of cause of claim, etc. by November 18, 2010, and Defendant 1 demanded the distribution of the deposit amount of KRW 1 billion with the refund bond of KRW 1 billion on October 22, 2010.

H. On December 2, 2010, the Korea Asset Management Corporation prepared a distribution statement as follows, and the Plaintiff deposited an objection against the distribution amount by Defendant 1 in the Goyang Tax Office on the defective distribution amount.

36,174,460 won in 36,174,460 won in 2 high tax office 36,286,240 won in 2,286,240 won in 36,286,240 won in 2,4,6, Seocho-gu Administration 30,035,370 won in 35,35,000 won in 29,911,340 won in 29,911,340 won in 3, Defendant 11,000,000,000 won in 1,000,000,000 won in 5 Plaintiff 2,741,517,458 won in 98,560,200 won in 20,932,240 won in total.

[Ground of Recognition] A without dispute, Gap evidence 1-1, 2, 2-1, 3, 4, 5, Gap evidence 6-1, 2, 7, 8, 11, 12, 13, Eul evidence 14-1 through 4, Eul evidence 10-1, 10-1 through 11, and the purport of the whole pleadings

3. Determination on this safety defense

The defendants, since the Korea Asset Management Corporation's refusal of the plaintiff's request for distribution constitutes a rejection disposition subject to administrative litigation, the plaintiff shall raise an objection against the rejection disposition or request for adjudication, and then file an application for remedy in accordance with administrative litigation procedures. Since the lawsuit of this case is a civil procedure against the defendants, the lawsuit of this case violates the litigation

However, although the Korea Asset Management Corporation's allocation disposition is an administrative disposition, the plaintiff's claim of this case can be seen as seeking the transfer of unjust enrichment by receiving the sales price that the plaintiff should have received from the above allocation disposition under the premise that the above allocation disposition is null and void as an administrative disposition. The issue of whether the above allocation disposition becomes null and void and thus, the sales price distributed to defendant 1 becomes unjust enrichment against the plaintiff is a reason to be determined in the merits. This claim itself can be claimed as a civil lawsuit regardless of the administrative litigation, and therefore, the defendants' defense of this safety is without merit.

4. Determination as to the claim against Defendant 1

A. Summary of the plaintiff's assertion

Although Defendant 1 is not a person entitled to distribution for the following reasons, the Korea Asset Management Corporation shall prepare a distribution statement to distribute KRW 1 billion to Defendant 1, and Defendant 1 acquired the right to claim a distribution payment of KRW 1 billion and thereby, Defendant 1, a subordinate creditor, suffered damages equivalent to the same amount. As such, Defendant 1 is obliged to transfer the right to claim a distribution payment of KRW 1 billion to the Plaintiff due to the return of unjust enrichment.

1) Defendant 1, who is the person having chonsegwon, did not permit the request for distribution to the person having chonsegwon with opposing power under the National Tax Collection Act, requested the distribution in the instant public sale procedure.

2) Articles 84 and 88 of the Civil Execution Act regarding the demand for distribution should be applied mutatis mutandis to the person having a right to lease on a deposit basis who has opposing power in the public sale procedure. In addition, the purport of the latter part of Article 83(1) of the National Tax Collection Act is only that interested parties can provide the data prior to the preparation of the distribution statement, and accordingly, if the demand for distribution by the person having a right to lease on a deposit basis is permitted after the date of sale, the lower-ranking security holder in the public sale procedure would be unfairly discriminated against the lower-ranking security holder in the public sale procedure and thus contravene the principle of equality. Accordingly, the demand for distribution should not be permitted after the date of sale to the person

3) In the instant public sale procedure, the Korea Asset Management Corporation publicly announced that the instant chonsegwon, the highest priority right to lease on a deposit basis, is not extinguished, and sold to Defendant 2 and Defendant 3 under the condition that the instant chonsegwon is taken over. As such, the instant chonsegwon was taken over to Defendant 2 and Defendant 3, and was not extinguished due to sale.

4) Although Defendant 1 was notified of the fact that the public auction procedure is in progress as the right holder prior to national taxes, he did not report to the head of the tax office the fact that he requested the distribution within 10 days pursuant to Article 48(2) of the National Tax Collection Act, and thus, he should be deemed to have expressed his wish to take over the right to lease on a deposit basis. Meanwhile, even though Defendant 1 did not demand the distribution by the deadline for the completion of the request for distribution under the Civil Execution Act by the Plaintiff’s voluntary auction procedure conducted prior to the public auction procedure, Defendant 1 demanded the distribution after the decision of sale during the public auction procedure in this case. Since Defendant 1’s above act goes against his prior act, the request for distribution made by Defendant 1 to extinguish the right to lease on a deposit basis in this case constitutes

B. Relevant statutes

director of the National Tax Collection Act (Amended by Act No. 9913, Apr. 4, 2011)

Article 48 (Notification of Attachment to Mortgagee, etc.)

(1) If the director of the tax office attaches property on which a lease on a deposit basis, pledge or mortgage has been established, he shall notify it to the creditors

(2) If a creditor having a priority over the national taxes desires to exercise his right after receiving the notification under paragraph (1), he shall report it to the director of the tax office within ten days after he is notified of it.

Article 80 (Scope of Distribution of Money)

(1) The director of the tax office shall distribute the money falling under any of the following subparagraphs in accordance with Article 81: Provided, That where the proviso of Article 61 (1) or the provisions of Article 62 (2) are applied, the Korea Asset Management Corporation may act on his behalf, and the distribution of money in this case shall be considered as having been done by

1. The attached money;

2. Money received from the delinquent taxpayer or the third debtor due to the attachment of claims, securities, intangible property rights, etc.;

3. The proceeds of sale of the attached property and the interest on deposit thereof;

4. The money received by requesting delivery.

Article 81 (Distribution Method)

(1) The money under Article 80 (1) 2 and 3 shall be apportioned to the following national taxes, surcharges, expenses for disposition on default, and other claims:

1. National taxes, additional dues and disposition fees for arrears related to attachment;

2. National taxes, additional dues, disposition fees for arrears, local taxes or public charges requested for delivery;

3. Claims secured by the right of lease on deposit basis, pledge or mortgage related to the attached property;

Article 83 (Preparation of Distribution Statement)

(1) When the head of tax office distributes money under Article 80, he shall prepare a distribution statement under the conditions as prescribed by the Presidential Decree and deliver it to the defaulted taxpayer. In this case, any person subject to distribution of the proceeds of sale shall request the head of tax office to distribute before he prepares the distribution statement.

【Civil Execution Act

Article 91 (Selection, etc. of Acceptance Principle and Surplus Principle)

(1) Unless a successful bidder has made a successful bidder take over an obligation regarding a claim preceding the claim of an execution creditor, or unless the proceeds of sale are deemed to be insufficient to clear such obligation, the relevant immovables shall not be sold.

(2) All mortgages on the sold real estate shall be extinguished by such sale.

(3) Superficies, easements, chonsegwons, and registered leases shall be extinguished by sale, if they cannot be asserted against claims for mortgage, seizure, or provisional seizure.

(4) Except for cases falling under paragraph (3), superficies, easements, chonsegwons, and registered leases shall be acquired by the successful bidder: Provided, That in cases of chonsegwon, if a person having chonsegwon wishes to demand a distribution pursuant to Article 88, the sale thereof shall be extinguished.

(5) A buyer shall be liable to repay to a lien holder any claim secured by the lien.

C. Determination

1) Whether the request for distribution by the person having chonsegwon with opposing power is permissible under the National Tax Collection Act

According to Article 81 (1) 3 of the National Tax Collection Act, the term "claim secured by the right to lease on a deposit basis related to attached property" is defined as "claim secured by the right to receive distribution in the public sale procedure, and the right to lease on a deposit basis is defined as "claim secured by the right to lease on a deposit basis related to attached property" regardless of whether the right has opposing power. Thus, there is no reasonable ground to exclude the opposing right from the right subject to distribution in the public sale procedure, and the opposing person can make a demand for distribution in the public sale procedure under the Civil Execution Act (Article 91 (4) of the Civil Execution Act). Since there is no ground to deem that the demand for distribution in the public sale procedure cannot be made, the right to lease on a deposit basis may

2) Whether the person having chonsegwon cannot make a demand for distribution after the sale date under the National Tax Collection Act

On the other hand, the procedure for compulsory execution under the Civil Execution Act aims at the prompt satisfaction of tax claims by administrative agencies while the procedure for disposition on default under the National Tax Collection Act is for the purpose of judicial resolution through satisfaction of satisfaction of general claims. Thus, the provisions of the Civil Execution Act concerning a demand for distribution under the National Tax Collection Act cannot apply mutatis mutandis to the procedure for public sale unless there is a clear provision that the provisions of the Civil Execution Act concerning a demand for distribution under the National Tax Collection Act shall not apply to the procedure for public sale. Even at the same time when the former Civil Procedure Act enters into force for the same reason, precedents cannot apply mutatis mutandis to the procedure for distribution under Article 605 of the former Civil Procedure Act, which is a provision concerning the demand for distribution and its time, in disposition on default (see Supreme Court Decision 201Du7329, Dec. 11, 2001). In light of the latter part of Article 83(1) of the National Tax Collection Act, the person who has the right of lease may request the head of a tax office to make a demand for distribution prior to the date of distribution.

3) Whether the public sale procedure of this case was conducted on the condition that the right to lease on a deposit basis is taken over

In light of the above, the public auction notice of this case contains the general meaning that the purchaser takes over the right of lease on a deposit basis (the right of lease on a deposit basis) as stated above, since the Korea Asset Management Corporation is the condition that the purchaser takes over the right of lease on a deposit basis (the right of lease on a deposit basis not extinguished by sale) and cancelled at the time of request of distribution of the right of lease on a deposit basis (the right of lease on a deposit basis). However, the above public auction notice of this case contains the general meaning that the right of lease on a deposit basis (the right of lease on a deposit basis) with opposing power is extinguished upon request of distribution, but if there is no request for distribution,

4) Whether Defendant 1’s demand for distribution violates the good faith principle

However, Article 48(2) of the National Tax Collection Act provides for creditors who have priority over national taxes, and there is no evidence to acknowledge that Defendant 1 has priority over national taxes. In seizing property of a delinquent taxpayer, the above provision must be notified to other creditors, etc. when the head of a tax office seizes the property of the delinquent taxpayer, and the creditor having priority over national taxes must report to the head of a tax office within 10 days from the date of receipt of the above notification. Since there is no direct relation with the request for distribution, Defendant 1 is liable to make a request for distribution within 10 days from the date of receipt of the notice by the head of a tax office, or he did not report the fact that Defendant 1 has requested distribution within 10 days from the date of receipt of the notice by the head of a tax office, it cannot be deemed that

In addition, even if Defendant 1 did not make a demand for distribution by the deadline for the completion of the demand for distribution in the voluntary auction procedure concerning the instant real estate progress prior to the instant public auction procedure, the voluntary auction procedure is distinguishable from the public auction procedure, and since the creditor’s right is the creditor’s right to demand distribution in the public auction procedure, the demand for distribution in the prior public auction procedure without making a demand for distribution in the prior public auction procedure, and cannot be deemed as a violation of the good faith and good faith principle.

5) Sub-decisions

Therefore, it is reasonable for the Korea Asset Management Corporation to distribute the full amount of the deposit to Defendant 1 prior to the plaintiff, who is a senior mortgagee after the order of distribution by Defendant 1. The plaintiff's assertion on a different premise is without merit (On the other hand, the act that the Korea Asset Management Corporation sells the attached property on behalf of the head of a tax office under the National Tax Collection Act and prepares a distribution statement concerning the proceeds from the sale, which constitutes an administrative disposition subject to administrative litigation. In order to recognize the plaintiff's right to request the return of unjust enrichment against Defendant 1, the distribution disposition against the Korea Asset Management Corporation should be illegal. However, even if the administrative disposition is unlawful, the effect of the administrative act is not denied without any reason except where there is a reason to deem it as void as a result of significant and obvious defect, but it is not identical to the res judicata effect of the judgment, but if the administrative defect belonging to the objective scope of its fairness is merely a reason to revoke the administrative act, the plaintiff's claim for the cancellation of the distribution plan cannot be viewed as a legal benefit by denying the validity of the disposition unless it is revoked (see Supreme Court Decision 10Da1094.10.

5. Determination as to claims against Defendant 2 and Defendant 3

A. Summary of the plaintiff's assertion

If Defendant 1’s request for distribution is justifiable, Defendant 2 and Defendant 3 should return to the Plaintiff a reasonable amount of the deposit money as unjust enrichment on the following grounds. In other words, Defendant 2 and Defendant 3 participated in the sale procedure on the premise that the highest priority right of lease on a deposit basis is taken over in the public sale procedure in this case and purchased the instant real estate in this case. Defendant 1 demanded distribution after the sale date, which led to the extinguishment of senior right of lease on a deposit basis. Accordingly, Defendant 2 and Defendant 3 obtained profits without any legal cause, while the Plaintiff suffered considerable damages.

B. Determination

As seen earlier, the public sale procedure of this case cannot be deemed to have been conducted on the condition that the right to lease on a deposit basis is acquired through the public sale procedure of this case, and as a result, Defendant 2 and Defendant 3 exempted Defendant 1 from the obligation to return the deposit money to Defendant 1 as a result of Defendant 1’s allocation of the amount equivalent to the deposit money through the public sale procedure of this case, but this cannot be deemed to have been lawful in accordance with the public sale procedure, and thus, it cannot be deemed that Defendant 2 and Defendant 3 obtained the benefit without any legal cause in relation to the Plaintiff. Thus,

6. Conclusion

Therefore, the plaintiff's claim against the defendant 1 against the defendant 1 is dismissed as it is without merit. Since the part against the defendant 1 among the judgment of the court of first instance against the defendant 1 is unfair with its conclusion different, the part against the defendant 1 among the judgment of the court of first instance is revoked, and the plaintiff's claim against the defendant 1 is dismissed. It is so decided as per Disposition.

【Attachment List of Bonds】

Judge Do-charter (Presiding Judge)