[1] In a case where a decision of provisional seizure on a real estate was made before the commencement of the auction procedure and the transferee establishes a distribution schedule that distributes the claim to other creditors without paying dividends to the transferee even though the transferee proved the transfer of the claim prior to the confirmation of the distribution schedule, whether the transferee may make a claim for return of unjust enrichment against the above creditor (affirmative), and whether the above claim for return of unjust enrichment may be made even in a case where the transferee is excluded from the distribution because the transferee does not vindicate that the transferee is the transferee of the preserved claim

[2] In a case where Gap's application was made prior to the commencement of the auction procedure on real estate and the claim for provisional seizure was transferred to Byung through Eul, and Byung was excluded from the distribution because Byung did not vindicate that Byung acquired the claim for provisional seizure from Byung before the distribution schedule became final and conclusive, the case holding that if Byung was excluded from the distribution due to the above circumstances, if Byung participated in the distribution as the transferee of the claim for provisional seizure, he could not claim a return of unjust enrichment against other creditors who received the distribution of dividends

[1] There is no additional registration system for the registration of provisional seizure of real estate, but the specific successor who has taken over the right to be preserved for provisional seizure may participate in the distribution as a successor of the provisional seizure creditor by citing the validity of the provisional seizure by submitting a notice of assignment of claims prior to the date of distribution to the court of execution by clarifying that he/she is lawful succession, and thus, in cases where the preserved claims are transferred after the decision of provisional seizure was issued prior to the commencement of the auction procedure, the transferee of the secured claims may receive dividends from the auction court by proving that he/she was taken over the preserved claims prior to the confirmation of the distribution schedule. In such cases, in cases where the auction court prepared the distribution schedule by preparing the distribution schedule by failing to distribute the preserved claims to the transferee of the secured claims and the distribution schedule becomes final and conclusive, the creditor who did not receive dividends and received dividends is entitled to a claim for the return of unjust enrichment against the creditor who received dividends, but in such cases, if the distribution schedule is prepared and confirmed as excluded from the distribution before the distribution schedule becomes final and conclusive, it cannot be deemed that there was a legitimate cause for other creditors to receive dividends.

[2] In a case where Gap's application was made prior to the commencement of the auction procedure as to real estate and the claim for provisional seizure was transferred to Byung through Eul, and Byung submitted a notice of assignment of claim to Eul to the auction court prior to the confirmation of the distribution schedule in the above auction procedure, but Byung was excluded from the distribution because Eul failed to submit a notice of assignment of claim to Eul as to "A transferred the claim for provisional seizure to Eul", the case holding that Byung was excluded from the distribution because Byung did not prove that Eul acquired the claim for provisional seizure from Gap before the distribution schedule became final and conclusive, and Byung was excluded from the distribution due to the above circumstances, if Byung participated in the distribution as the transferee of the claim for provisional seizure, it cannot be deemed that there was no legal ground, even if other creditors received the dividend, and thus, it cannot be claimed for the unjust enrichment against other creditors

[1] Articles 449, 450, and 741 of the Civil Act; Articles 148 subparag. 3 and 149 of the Civil Execution Act / [2] Articles 449, 450, and 741 of the Civil Act; Articles 148 subparag. 3 and 149 of the Civil Execution Act

Korea Mutual Savings Bank (Law Firm Democratic, Attorneys Lee Han-soo et al., Counsel for defendant-appellant)

Bankruptcy Trustee of Korea Securities Corporation

U.S.P. (Law Firm Il-il General, Attorney Maximum Intervention, Counsel for the defendant-appellant)

Suwon District Court Decision 2009Dahap5656 decided January 15, 2010

August 18, 2010

1. The application for intervention by the defendant succeeding intervenor shall be dismissed;

2. The plaintiff's appeal is dismissed.

3. The costs of appeal shall be borne by the plaintiff, and the costs of appeal due to the intervention shall be borne by the succeeding intervenor.

The judgment of the first instance is revoked. The defendant shall give notice to the plaintiff that he transferred the bonds listed in the attached list to the plaintiff, and ② that he transferred the bonds listed in the attached list to the Republic of Korea (the competent district court in Suwon District Court in cash).

1. Basic facts

The following facts shall not be disputed between the parties, or may be recognized by comprehensively taking into account the respective descriptions of Gap evidence of subparagraphs 1 through 13, and Eul evidence of subparagraphs 1 through 5 and the whole purport of pleadings:

A. The claim relationship between the Plaintiff and the same mineral medication corporation

(1) The three General Financial Co., Ltd. (hereinafter referred to as the “Trisung”) entered into a bill transaction agreement on the discount of bills and other transaction of bills (hereinafter referred to as the “instant bill transaction agreement”) with the same mineral bank (hereinafter referred to as the “identical mineral bank”), and Nonparty 1 (the Nonparty in the judgment of the Supreme Court) jointly and severally guaranteed the obligation owed by the same mineral bank with respect to the third mineral bank in accordance with the said bill transaction agreement.

(2) However, as of January 31, 1998, when the Minister of Finance and Economy made a decision to transfer a contract on the third-party deposit, a contract was concluded between the third-party deposit in the bill transaction agreement of this case and the Han-han Comprehensive Finance Co., Ltd. (the corporation was merged into the Han-han Mutual Finance and Finance Co., Ltd., Jun. 14, 2001; hereinafter the same shall apply) and the third-party deposit in the same mineral deposit and its joint and several sureties changed the contents of the above bill transaction agreement to the creditor of the above bill transaction agreement, and thereafter the composition procedure was commenced on Feb. 22, 199 and the composition was approved on Apr. 9, 199.

(3) On the other hand, on November 29, 2001, Lone Star Fund 3 [Lone Star Fund hereinafter “Lone Star Fund”) entered into a contract for the sale of loan claims including a claim based on the Promissory Notes Agreement (hereinafter “the instant claim”) with Lone Star Fund 3 [Lone Star Fund hereinafter “Lone Star Fund”)], but on December 31, 2001, the Kone Star Fund hereinafter “Lone Star Fund was merged with the Kone Star Fund hereinafter “K”). On February 8, 2002, Lone Star Fund and LEF Korea entered into a contract with the Kone Star Fund and LEF Korea to acquire the purchaser status under the above loan claims and notify the transfer of the transfer of the claim to LSP at that time.

(4) After that, LSF transferred to the Plaintiff the claims owned by the same mining concession (such as the instant claim and the composition claim amounting to KRW 3.488 billion, and KRW 8.2 billion, based on the right to foreclose outside bankruptcy) and notified the transfer of the claims to the same mining concession on November 14, 2002. On December 4, 2002, the Plaintiff transferred the entire claims transferred to the same mining concession company specializing in the securitization on the ASP (hereinafter “AS”) as above, and notified the same on the same day.

(5) On April 14, 2006, A.S. again transferred to the Plaintiff the claims and composition claims based on the right to separation of 2.61 billion won among the claims transferred by the Plaintiff on April 14, 2006 (the description of claims under the certificate of transfer (A), is indicated as "special right and composition claims", and the transfer amount is written separately from the principal amount, and the transfer amount is stated as separate interest, and there are only attempted interest, and the composition claims for the same mineral medication are limited to the claims based on the right to separation of outside bankruptcy). On April 19, 2006, A.S again transferred the claims to the Plaintiff. On April 19, 2006, A.S sent a separate notice stating that "the separate right, the balance of loans, interest of KRW 2.61 billion, interest of KRW 50 million," as the details of claims subject to transfer (Article 5(3) of A).

B. Claim relationship between the defendant and the same mining control chemicals and the provisional seizure of the plaintiff and the defendant

(1) The Korea Securities Co., Ltd. (hereinafter “Korea Securities Co., Ltd.”) entered into a bond guarantee contract between Apr. 22, 1996 and May 13, 197 with the East Mine Medicine, and Nonparty 1 jointly and severally guaranteed the debt owed by the East Mine Medicine according to the bond guarantee contract.

(2) On the same day upon the declaration of bankruptcy on October 9, 1998, Nonparty 2 was appointed as trustee in bankruptcy. Nonparty 2 resigned on June 12, 2003, and Nonparty 3 was appointed as trustee in bankruptcy on the same day (after that, Nonparty 3 resigned on January 19, 2010 and was appointed as trustee in bankruptcy on the same day; hereinafter “Defendant”), the Defendant filed an application for provisional attachment against Nonparty 1 with the Seoul Central District Court for the provisional attachment of KRW 5 billion out of the guaranteed bonds under the above bond guarantee contract as the preserved right. The above court accepted the Defendant’s application on September 1, 2005, and made the provisional attachment order with the Seoul Central District Court No. 2005Kadan5058, Jun. 12, 2005, Nonparty 3, who owned Nonparty 1, as the non-party 3, as the trustee in bankruptcy (hereinafter “Defendant”). The provisional attachment order was made pursuant to the Seoul Central District Court Decision No. 3882, May 25, 2005.

(3) After that, the defendant filed a lawsuit against the non-party 1 seeking the performance of the guaranteed obligation under the above bond guarantee contract (Seoul Central District Court 2005Kadan4732). On October 6, 2005, the above court rendered a judgment that "the non-party 1 shall pay to the plaintiff the amount of KRW 5,021,190,917 and the amount of KRW 5,000,000 among them, the amount of KRW 19% per annum from January 12, 2001 to August 29, 2005 and the amount of KRW 20% per annum from the next day to the date of full payment (hereinafter "the above judgment"). The above judgment became final and conclusive on October 28, 2005.

(4) On the other hand, on August 9, 2001, the Hanman Treasury applied for provisional seizure against Non-Party 1 as the preserved right. The above court accepted the application of Hanman National District Court, and decided provisional seizure on the real estate of this case as Seoul Central District Court 2001Kadan79952. Accordingly, on August 9, 2001, the provisional seizure decision was registered (hereinafter “the provisional seizure of this case”).

(c) Circumstances, etc. of the compulsory auction;

(1) On June 1, 2006, the Defendant made an application for a compulsory auction of the instant real estate to the Suwon District Court Branch Branch, in the name of the debtor, and the said auction court rendered a decision to commence the auction of the instant real estate on June 2, 2006 and conducted the auction procedure (hereinafter “instant auction procedure”).

(2) When the real estate of this case was awarded to Nonparty 4 on March 27, 2007 and the sales price was paid on April 30, 2007, the above auction court designated on June 5, 2007 as the date of distribution. On May 29, 2007, the Plaintiff submitted a claim statement stating that the amount of the claim pertaining to the provisional attachment of this case is KRW 0,910,197,115, while the Plaintiff submitted the claim statement stating that the amount of the claim pertaining to the provisional attachment of this case is KRW 1,910,197,115, the Plaintiff was the final transferee of the claim of this case. However, the Plaintiff did not submit the claim transfer notice (Evidence 5-1 of the evidence No. 5) stating that “The Financial Services Corporation transferred the claim of this case to LSF.”

(3) The above auction court held that the plaintiff did not clearly prove that the above notice of assignment of claims was the final transferee of the claim of this case on June 5, 2007, when distributing dividends on the date of distribution, and distributed the amount of KRW 108,879,882 to the reorganization financial corporation, which is the person holding the right of provisional seizure, and KRW 1,218,316,568 to the defendant, who is the applicant creditor, in the same order of priority. The defendant appeared on the date of distribution, and stated an objection against the whole amount of dividends distributed to the reorganization financial corporation among the above distribution schedule, and filed a lawsuit of demurrer against distribution on June 8, 2007.

(4) In a lawsuit of demurrer against the distribution (2007Gahap1984) brought by the Defendant against the reorganization financing corporation, Suwon District Court rendered a judgment that "as to the compulsory sale of real estate (2006 Kawon District Court Sejong District Court members) around 6414, the amount of dividends of KRW 1,218,316,568 against the Plaintiff (the Defendant of this case) among the dividend table prepared on June 5, 2007 by the above court, the amount of dividends of KRW 1,327,196,450 and KRW 108,879,882 against the Defendant (the Financial Corporation) was corrected as KRW 00,00,000, the appellate court of the above case was dismissed at the above court's 208Na12783, and the above judgment was affirmed at that time.

2. Determination as to the legitimacy of the application filed by the defendant succeeding intervenor

The Defendant’s succeeding intervenor acquired from the Defendant the claim indicated in the final judgment of the Seoul Central District Court Case No. 2005Kadan4732, Feb. 10, 2010, and the above right includes the claim indicated in the separate sheet, and thus, the Plaintiff asserted that the Defendant’s succeeding intervenor’s succeeding intervenor’s succeeding intervenor’s motion for intervention in the instant case is unlawful against the validity of the provisional disposition prohibition. The Defendant’s claim subject to the instant case is the withdrawn claim of deposit money deposited under No. 1042, Jun. 2, 2007, the Seoul Central District Court No. 2005Kadan4732, which the Defendant succeeding intervenor asserted as the cause of the succeeding intervention, and thus, the Defendant’s succeeding intervenor’s succeeding intervenor cannot be deemed as the person who succeeded to the subject matter of the lawsuit, and thus, the instant succeeding intervention in the instant case is unlawful.

According to the evidence evidence No. 15, the plaintiff was found to have received a provisional disposition prohibiting the act of disposal on the claims listed in the separate sheet from the Suwon District Court's Sung-nam branch as the debtor on May 1, 2009. The provisional disposition prohibiting the act of disposal is prohibited, and the provisional disposition prohibiting the act of disposal is, which, however, it is recognized that the provisional disposition obligor still holds the right holder's status in relation to the provisional disposition obligee. Thus, even if the above claims were transferred after the provisional disposition prohibiting the provisional disposition prohibiting the disposal, the defendant still holds the right holder's status against the plaintiff, and thus the defendant's successor cannot participate in the succession on the ground that the defendant's successor was assigned the above claims. Thus, the defendant's application for participation by the defendant's successor is unlawful because it does not meet the requirements for participation

3. Judgment on the merits

A. The plaintiff's assertion

The plaintiff was the final transferee of the claim transfer made in the order of "The Reorganization Corporation-ELS-Plaintiff-Plaintiff" with respect to the composition claim against the non-party 1, and even though the creditor status of the provisional seizure of this case was legally succeeded, the Liquidation Financial Corporation received dividends of KRW 108,879,82 from the plaintiff because the plaintiff failed to properly assert the fact of succession to the claim during the auction procedure of this case, and the liquidation Financial Corporation received dividends of KRW 108,879,82. As a result, the defendant filed a lawsuit of objection against the liquidation Financial Corporation against himself and the non-party 1, as a result, the distribution schedule was revised to distribute the above dividends to the defendant on the ground that the claim for distribution of the liquidation claim of the Reorganization Financial Corporation was not a legitimate creditor because the claim for distribution was already transferred to him and the non-party 1, and the defendant obtained profits equivalent to the increased dividends

B. Determination

Although there is no additional registration system for the registration of provisional seizure of real estate, the specific successor who has taken over the right to be preserved for provisional seizure may participate in the distribution as a successor of the provisional seizure creditor by submitting a notice of assignment of claims, etc. before the date of distribution to the court of execution and clarifying that he is lawful succession, and thus, in case where the secured claims are transferred after the decision of provisional seizure was issued prior to the commencement of the auction procedure, the transferee of the secured claims may receive dividends from the auction court by proving that he was taken over the secured claims before the distribution schedule became final and conclusive. However, in case where the distribution schedule is final and conclusive as it was prepared by the auction court without paying dividends to the assignee of the preserved claims even though the transferee of the secured claims proved that he was taken over the secured claims before the distribution schedule became final and conclusive, the creditor who did not receive dividends and was paid dividends, who did not receive dividends, has the right to claim the return of unjust enrichment against the creditor who received the dividends, but in such case, if the distribution schedule is prepared and confirmed as excluded from the dividends before the distribution schedule becomes final and conclusive, it cannot be deemed a legal ground for receiving other creditors.

As seen earlier, the fact that the Plaintiff was excluded from the distribution because it was not clearly explained that the Plaintiff acquired the preserved claim from the reorganization financial corporation before the distribution schedule became final and conclusive (the dividend was once distributed to the reorganization financial corporation which is a creditor of provisional seizure on the date of distribution, but the distribution schedule was revised to distribute the dividends to the Defendant in the lawsuit of demurrer against distribution). If the Plaintiff was excluded from the distribution due to the above circumstances, if the Plaintiff participated in the distribution as the transferee of the claim of provisional seizure, it cannot be said that there is no legal ground, even if the Plaintiff was paid the dividends that would have been distributed to the Plaintiff. In this respect, if the Plaintiff did not have the right to claim the return of unjust enrichment, the Plaintiff’s assertion is without merit.

4. Conclusion

Therefore, the application for intervention by the defendant succeeding intervenor filed in the trial court is unlawful, and the plaintiff's application for intervention is dismissed as it is without merit. The judgment of the court of first instance is just in conclusion, and the plaintiff's appeal is dismissed as it is without merit. It is so decided as per Disposition.

[Attachment]

Judges Jins and decorations (Presiding Judge)