Attorney Kim Jae-soo et al.

Specialized Construction Financial Cooperative (Attorney Park Jong-soo, Counsel for the defendant-appellant)

December 2, 2015

1. The plaintiff's claim is dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

The defendant shall pay to the plaintiff 24,279,832 won with 20% interest per annum from September 1, 2015 to September 30, 2015, and 15% interest per annum from the next day to the day of full payment.

1. Basic facts

A. On June 14, 2011, the provisional seizure period registration for the claim amounting to 600 million won was completed in the Defendant’s name, and on August 10, 2011, the voluntary auction (hereinafter “instant voluntary auction”) was commenced at Suwon District Court (Seoul District Court Decision 201Mo15355, Seoul District Court’s application by a new bank, a collateral security right holder, on August 10, 2011.

B. In the instant voluntary auction on April 12, 2012, the said real estate was sold, and the distribution was carried out on May 25, 201, and KRW 24,272,517 was distributed to the Defendant as the person holding the provisional seizure. On June 5, 2016, the execution court deposited the said amount of dividends against the Defendant pursuant to Article 160(1) of the Civil Execution Act (hereinafter “the deposited money”).

C. On July 26, 2013, the Defendant filed a lawsuit against the Non-Party 2013Dahap29498, seeking reimbursement of KRW 195,135,219, and damages for delay damages against the Plaintiff and the Non-Party 2, and the instant judgment on the merits became final and conclusive around August 17, 2013.

D. Meanwhile, on June 17, 2014, the above bankruptcy debtor filed a petition for bankruptcy with this court No. 2014Hadan6176, and this court appointed the plaintiff as the bankruptcy trustee on August 27, 2014 when the above bankruptcy debtor was declared bankrupt on August 27, 2014.

E. After October 22, 2014, the Defendant paid KRW 24,279,832, including the instant deposit and interest thereon.

[Reasons for Recognition] Facts without dispute, Gap 1, 2, 3, 5, 6, 8, Eul 1 and 2, the purport of the whole pleadings

2. Assertion and determination

A. The parties' assertion

The plaintiff asserts that the compulsory execution, provisional seizure, or provisional disposition against the property belonging to the bankrupt foundation based on bankruptcy claim shall lose its effect against the bankrupt foundation. Thus, inasmuch as the defendant was declared bankrupt against the non-party, before paying the deposit money of this case, the right to claim payment of the deposit money of this case shall belong to the plaintiff. Thus, the defendant asserts that the defendant has the obligation to return the deposit money of this case received by the defendant as unjust enrichment

On the other hand, the defendant asserts that once the judgment on the merits of this case becomes final and conclusive before the bankruptcy is declared against the above debtor, the right to claim the payment of the deposit of this case belongs to the defendant, so the plaintiff's claim cannot be complied with.

B. Determination

The right to manage and dispose of the bankrupt estate belongs to the bankruptcy trustee (Article 384 of the Debtor Rehabilitation and Bankruptcy Act), the compulsory execution, provisional seizure or provisional disposition against the property belonging to the bankrupt estate based on the bankruptcy claim shall lose its effect against the bankrupt estate (Article 348(1) of the same Act), and the bankruptcy estate refers to all the property owned by the debtor at the time of the bankruptcy (Article 382 of the same Act), and the issue of this case is whether the right to claim payment against the deposit of this case belongs to the bankruptcy estate.

If the right to claim for the payment of the deposit money belongs to the plaintiff as a bankruptcy estate, as alleged by the plaintiff, the defendant who did not receive the payment of the deposit money of this case shall be deemed to hold the claim against the above bankruptcy debtor equivalent to the amount of the deposit money of this case as bankruptcy claim. On the other hand, as alleged by the defendant, if the right to claim the payment of the deposit money of this case belongs to the defendant, it shall be deemed to be extinguished within the scope of the deposit money of this case received by the defendant and the claim against the non-party to the bankruptcy debtor equivalent to the interest thereof. In other words, the ownership of the right to claim the payment of

However, when a dividend court distributes dividends, it shall deposit the amount of dividends to a creditor of provisional seizure. If the grounds for a deposit are extinguished as the judgment on the merits becomes final or the settlement or conciliation in the lawsuit is concluded, or a decision in lieu of a recommendation for compromise or conciliation becomes final and conclusive, etc., the dividend court shall pay the deposit to the creditor of provisional seizure (see Articles 160(1)2 and 161(1) of the Civil Execution Act). Barring special circumstances, the claims of the creditor of provisional seizure who ordered payment at the final judgment, etc. on the merits shall be extinguished at the time of the final and conclusive judgment, etc. on the merits to the extent that the amount of dividends is appropriated (see Supreme Court Decision 2012Da65874, Sept. 4, 2014). Therefore, as long as the claims of the creditor of provisional seizure become extinct at the time the judgment, etc. on the merits becomes final and conclusive, it is reasonable to deem that the corresponding claim for payment

As to this case, since the judgment on the merits of this case became final and conclusive before the bankruptcy was declared against the above debtor, the right to claim payment of the deposit of this case belongs to the defendant at the time when the judgment on the merits of this case became final and conclusive, and thus, it cannot be deemed that the right to claim payment of the deposit of this case belongs to the bankrupt foundation due to the declaration of bankruptcy, and otherwise, unless any circumstance exists to deem that the right to claim payment of the deposit of this case belongs to the bankrupt foundation, the plaintiff's claim of this case based on this premise is without merit.

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and it is so decided as per Disposition.

Judges Choi Sung-sung