2013Da214444 Return of unjust enrichment

A

B A debtor B, who is the taking over of a lawsuit by a corporation B

C Company B, the receiver’s taking over of the lawsuit

Daejeon District Court Decision 2013Na100567 Decided September 26, 2013

September 10, 2015

The judgment below is reversed, and the case is remanded to Daejeon District Court Panel Division.

The grounds of appeal are examined.

1. Regarding ground of appeal No. 2

A. Examining the reasoning of the lower judgment in light of the relevant legal principles and records, the lower court’s determination that the Defendant, as a user of H, etc. as indicated in its holding, is reasonable to have determined that the Defendant is liable for compensation for the Plaintiff’s damage caused by erroneous explanation as to the terms and conditions of the sale contract of H, etc., which performed the sale of the apartment of this case as indicated in the lower judgment, pursuant to Article 756 of the Civil Act. In so doing,

B. However, property damage caused by a tort refers to the difference between the property disadvantage caused by an illegal harmful act, i.e., the property condition that would have existed without the illegal act and the current property condition that became the illegal act (see, e.g., Supreme Court Decision 2011Da25695, Dec. 13, 2012). As such, the original city should have deliberated on whether the Plaintiff would not purchase the apartment of this case if it would have been aware of the terms and conditions of the sales contract properly, and whether the apartment of this case would have purchased the apartment of this case on any condition if it would have purchased the apartment of this case under the accurate conditions of the sales contract.

Nevertheless, the lower court’s determination that the difference between the sale price and the actual sale price explained by H as damages is not sufficient to exhaust all necessary deliberations or erred by misapprehending the legal doctrine on the calculation of damages.

2. Regarding ground of appeal No. 1

(a) When any decision to authorize the rehabilitation plan is made, rights of rehabilitation creditors, etc. according to the rehabilitation plan;

Except for the rights that are modified and recognized pursuant to the provisions of the Debtor Rehabilitation and Bankruptcy Act (hereinafter “Act”), immunity takes effect for all rehabilitation claims and rehabilitation security rights (Articles 251 and 252 of the Act), and even if the rehabilitation procedure is terminated after the rehabilitation plan is decided, the debtor is obligated to continue to perform the rehabilitation plan, such as repaying his/her obligations, as prescribed by the rehabilitation plan. Therefore, in cases where the rehabilitation procedure is terminated while the lawsuit seeking confirmation of the rehabilitation claim, etc. is pending, the purport of the claim seeking confirmation of the rehabilitation claim, etc. is not modified to the purport of seeking the implementation of the rehabilitation claim, etc., rather than to change to the purport of claim seeking confirmation of the rehabilitation claim, etc., if the creditor’s right becomes final and conclusive through the rehabilitation procedure, etc. after the rehabilitation procedure is completed, the result of the lawsuit shall be recorded in the rehabilitation

Therefore, if a creditor changed the purport of his/her claim to seek confirmation of rehabilitation claims, etc. on the ground that the rehabilitation claim has continued to exist, into the purport of his/her claim seeking confirmation of rehabilitation claims, etc., and accordingly the court rendered a judgment ordering implementation of rehabilitation claims, etc., this is contrary to the above Act (see Supreme Court Decision 2012Da8417, 84424, 8431, Jan. 23, 2014). (b) According to the reasoning of the lower judgment and the record, the Plaintiff filed the instant lawsuit seeking restitution of unjust enrichment against the Defendant on February 6, 2012; (2) the Plaintiff reported the instant claim upon the commencement of rehabilitation procedures on May 10, 2012; and (3) the Plaintiff’s claim to seek confirmation of rehabilitation claims against the Plaintiff on the grounds that the custodian of the rehabilitation obligor B was partially changed into the Plaintiff’s claim to the rehabilitation claim on the date of reporting the rehabilitation claims, and (4) the lower court dismissed the Plaintiff’s claim to the rehabilitation claim approval order against the Plaintiff.

According to the above legal principles, even if the court rendered a final decision on the completion of rehabilitation procedures, the plaintiff was in receipt of a final decision on the right through the rehabilitation claim confirmation lawsuit, and did not modify the purport of the claim by seeking monetary payment again.

Nevertheless, the court below rendered a judgment ordering monetary payment to the defendant according to the correction of the purport of the claim, which is erroneous in the misunderstanding of legal principles as to the validity of the confirmation of rehabilitation claims and the termination of rehabilitation procedures.

3. Conclusion

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 Kim In-bok

Chief Justice Min Il-young

Justices Park Young-young

Justices Kim Jong-il