Some of the real estate on which joint mortgage is created is owned by the debtor, and some of the real estate is owned by the surety, the method of distributing the auction price.

Where part of the real estate on which joint mortgage has been created is owned by the debtor, some of the real estate owned by the debtor shall be distributed first from the auction price of the real estate owned by the debtor, and only if there is a shortage, an additional distribution shall be made from the auction price of the real estate owned by the person who

Article 741 of the Civil Act: Contents of Unjust Enrichment

2016Na84599 Unlawful gains

Korea

○ Kim

March 22, 2017

April 5, 2017

1. The defendant's appeal is dismissed.

2. The costs of appeal shall be borne by the Defendant.

1. Purport of claim

The defendant shall pay to the plaintiff 15,215,849 won with 15% interest per annum from the day following the day of service of a copy of the complaint of this case to the day of complete payment.

2. Purport of appeal

The judgment of the first instance is revoked. The plaintiff's claim is dismissed.

1. Basic facts

A. The former president of the ○○ Group operated the ○○○○ Construction in the name of BB and the ChangeA. On June 18, 2001, ○○ Construction purchased 8,021 square meters in the name of BB and the ChangeA from ○○○-dong, Seoul ○○○○○-dong, ○○○○○-dong, 8,021 square meters (hereinafter “instant land”). On June 20, 2001, the former president of the ○○ Group completed the registration of ownership transfer with BB shares 9/10 and changed AA shares 1/10.

B. ○○ Construction, on the instant land, was a business of newly constructing and selling ○○○, an underground 4th floor and a 12th floor aggregate building (hereinafter “the instant aggregate building”). All the procedures for the said business were registered as a business entity of ○○ Construction, but was conducted in the name of BB and NA.

C. After the completion of the instant aggregate building, on October 7, 2004, the registration of ownership preservation was completed with BB equity 9/10 of each sectional ownership and 1/10 of the changedAA equity 9/10 of each sectional ownership. At the time, the instant land was incorporated into land which is the object of the site ownership of each section for exclusive use.

D. On October 2009, the registration of transfer of ownership was completed in the name of the defendant, who was the wife of the changedA on October 2009 with respect to ○○○○, which was not sold in lots among the instant aggregate buildings (hereinafter “the instant household”).

E. As security for the instant household, the maximum debt amount of KRW 78,000,000,000 on October 20, 2009, and the establishment registration of a neighboring agricultural cooperative consisting of the debtor, the defendant, and the mortgagee of the right to collateral security (hereinafter “the establishment registration of a neighboring residential cooperative of this case”) was completed.

F. Meanwhile, as of October 21, 2010, the Plaintiff filed a lawsuit against the Defendant, etc. to cancel the registration for the preservation of ownership (No. 1: Seoul Central District Court 2010Gahap122822; Seoul High Court 2012Na17211). On April 19, 2013, the said appellate court accepted the Plaintiff’s claim against the Defendant seeking the implementation of the registration for the transfer of ownership on the ground of the restoration of real name with respect to the instant household, but the said judgment dismissed the Plaintiff’s claim seeking the implementation of the registration for the transfer of ownership on the ground of the restoration of real name with respect to the land which is the object of the right to the site of the instant household. As to the land that is the object of the right to the site of the instant household, the said judgment became final and conclusive on September 12, 2013 (Supreme Court Decision 2013Da37869).

G. On February 11, 2014, the Plaintiff’s portion of the building among the instant households in subrogation of Na on February 11, 2014

After completing the registration of ownership transfer in the name of AA, the registration of seizure was completed, and the right to site of the household of this case was cancelled due to the above final judgment.

H. On November 3, 2014, the Seoul Southern District Court rendered a voluntary decision to commence the auction of this case (hereinafter referred to as the “instant auction”) on the Defendant’s co-owned share on the instant building portion among the instant households and the instant land (hereinafter referred to as the “instant co-owned share”) corresponding to the instant household’s site portion among the instant land upon the application of ○○ Agricultural Cooperatives, a mortgagee of the right to collateral security (hereinafter referred to as the “instant co-owned share”).

I. According to the appraisal report prepared at the auction of this case, the appraised value of the instant household was 38,400,000 won (32% =38,400,000 won/120,000), and the appraised value of the building was 81,60,000 won (68% =81,60,600,000 won/120,000,000 won).

(j) On June 30, 2015, a date of distribution of the instant auction, the execution court prepared the attached Table 1 (hereinafter “instant distribution schedule”) on June 30, 2015, and the Defendant raised an objection against the Plaintiff’s dividends of KRW 47,549,527, and filed a lawsuit of demurrer against distribution (hereinafter “instant lawsuit of demurrer against distribution”) with Seoul Southern District Court 2015No34714.

(k) On July 21, 2015, the Plaintiff filed an application with the Seoul Central District Court for the cancellation of enforcement of provisional attachment on the instant building and the instant co-ownership shares (Seoul Central District Court 2010Kadan6879).

Other. Accordingly, on October 30, 2015, a court of execution prepared an additional distribution of KRW 47,549,527 of the Plaintiff’s dividends, and prepared an attached Table 2 (hereinafter “instant distribution schedule”) stating that the Defendant shall distribute KRW 15,215,849 in the order of priority and KRW 32,018,878 in the order of priority to the Plaintiff, and the Defendant received each of the above amounts.

(m) On November 2, 2015, the Defendant submitted a written withdrawal of a lawsuit in a lawsuit of demurrer against distribution to the instant case and was concluded on the grounds of the withdrawal of the lawsuit on November 18, 2015.

2. The assertion and judgment

A. Determination on the cause of the claim

(1) The plaintiff's assertion

The Plaintiff is composed of KRW 47,549,527, which was additionally distributed pursuant to the instant 2 distribution schedule, only of the auction proceeds of the part of the building in this case owned by the third acquisitor or the secured property of the surety, and KRW 47,512,07, excluding KRW 37,450, out of the above amount, the actual dividend proceeds of KRW 47,512,077, excluding KRW 37,450, out of the above amount, shall pay KRW 227,350, and KRW 47,284,727 to the Plaintiff in the order of first priority. As such, the Defendant who received KRW 15,215,849, pursuant to the instant 2 distribution schedule

(2) Determination

Article 368(1) of the Civil Act, which provides that "where a mortgage has been created on several real estate as security for the same claim, if a mortgage is created on several real estate at the same time, the share of the claim shall be determined in proportion to the auction price of each real estate shall not be applicable." Thus, in such case, the auction court shall preferentially distribute the real estate owned by the debtor to the joint mortgagee from the auction price of the real estate and additionally distribute the real estate owned by the mortgagee from the auction price of the real estate (see, e.g., Supreme Court Decision 208Da41475, Apr. 15, 2010; Supreme Court Decision 2008Da41475, Apr. 15, 2010; Supreme Court Decision 2008Da41475, Apr. 15, 201; Supreme Court Decision 2008Da3678, Feb. 28, 201).

In the instant case, as seen earlier, the establishment registration of the mortgage of this case was completed with the maximum debt amount of 78,00,000,000 won as the collateral for the instant household, the debtor, the defendant, and the mortgagee of the right to collateral security, and thus, the debtor of the above right to collateral security is the defendant (the defendant is the actual debtor of the above right to collateral security and the defendant only lent his name, but no evidence exists to acknowledge it). Meanwhile, NaA acquired at Won-si as the actual owner of the instant household as the owner of the instant household, provided the instant household as collateral for the instant right to collateral security, and BA is in the status of the surety of the above right to collateral security.

In light of the above facts in light of the above legal principles, ○○ Agricultural Cooperative’s claim, the mortgagee of the instant case, is preferentially distributed out of the auction price of the instant co-owned land owned by the Defendant, the debtor, and only if there is a shortage, additional dividends out of the auction price of the portion of the instant building out of the households owned by Na, the mortgagee of the instant case. The execution court shall pay out of 118,603,259 won (=118,603,935 won x 32%) which is the auction price of the instant co-owned land (=118,60,600,000 won (=5,00,000,000 x 32%), 6,4054,408, 36365, 369, 3605, 369, 369, 465, 369, 369, 369, 3657, 369

Therefore, the Defendant, as unjust enrichment, shall return to the Plaintiff, who is a creditor of Na, the amount of KRW 15,215,849 paid by the Defendant in accordance with the instant distribution schedule as unjust enrichment, and damages for delay.

B. Defendant’s assertion and judgment

The defendant asserts that the plaintiff waived the provisional seizure against the household of this case, and that the plaintiff renounced the claim for dividends by consenting to the withdrawal of the defendant's lawsuit in the lawsuit of demurrer against the distribution of this case.

The plaintiff revoked the execution of provisional seizure against the household of this case, and the fact that the lawsuit of demurrer against the distribution of this case was concluded as the withdrawal of the defendant's lawsuit. However, the above circumstance alone alone is insufficient to deem that the plaintiff renounced the claim, and there is no other evidence to acknowledge it, the defendant's above assertion is without merit.

C. Sub-committee

Therefore, the Defendant, as unjust enrichment, is obligated to pay to the Plaintiff the aforementioned KRW 15,215,849 as well as damages for delay at the rate of 15% per annum from April 21, 2016 to the day of full payment, which is the day following the delivery date of a copy of the instant complaint sought by the Plaintiff.

3. Conclusion

Therefore, the plaintiff's claim is justified, and the judgment of the court of first instance is just, and the defendant's appeal is dismissed as it is without merit. It is so decided as per Disposition.