Where unjust enrichment is constituted by the wrongful realization of a security;

In cases where the collateral is disposed of at a price significantly lower than the market price, and the method of disposal is also without examining whether there is a legitimate market price or a third party, and where the collateral is disposed of by means of payment in kind, and thus the loss is inflicted on another person due to a failure to faithfully perform his/her duty as a secured party, not only shall the collateral be compensated, but also the remainder

Article 750 of the Civil Act

Supreme Court Decision 73Da69 delivered on June 26, 1973 (Supreme Court Decision 10468 delivered on June 26, 197, Decision 750(195), Decision 750(195) 532 of the Civil Act, Court Gazette 470 delivered on June 26, 197

Plaintiff

Defendant

Seoul Civil History District Court (80 Gohap1708)

Of the original judgment, the part against the defendant who ordered payment from April 10, 1980 to the full payment rate of 5 percent per annum among the original judgment against the plaintiff, which was ordered to pay in excess of 12,96,545 won to the plaintiff, shall be revoked, and the plaintiff's claim on that part shall be dismissed.

The defendant's remaining appeal is dismissed.

All the costs of lawsuit shall be eight-minuteed by the defendant, and the remainder shall be borne by the plaintiff, respectively.

The defendant shall pay to the plaintiff an amount of 16,724,106 won with 5% interest per annum from the following day of service of the complaint to the full payment.

The costs of lawsuit shall be borne by the defendant and a declaration of provisional execution.

The part against the defendant in the original judgment shall be revoked, and the plaintiff's claim against that part shall be dismissed.

Litigation costs shall be assessed against the plaintiff at his/her own expense in the first and second instances.

The plaintiff did not dispute the establishment of Gap evidence 1-2 (each copy of the register), Gap evidence 2 (Evidence 1; hereinafter the same shall apply), Eul evidence 3 (Resident Registration Card No. 1); and the court below witness 1, 2, and part of the record verification result (excluding the portion not trusted later) of the court below; on July 20, 1978, the plaintiff did not have the above provisional registration No. 310,215 square meters and 372 square meters (Land Number 1 omitted), and the above provisional registration No. 2 was made to the defendant for the purpose of preserving the above provisional registration No. 9, and the defendant did not have the above provisional registration No. 2 for the purpose of preserving the ownership of the defendant for the purpose of preserving the right to claim the remainder of the provisional registration No. 5,000,000,000 to the defendant for the above provisional registration No. 2. 3,372 square meters (hereinafter the above forest and field of this case).

First of all, the plaintiff asserts that the defendant extended the repayment date of the above loan by January 20, 1979, but completed the principal registration of the forest of this case before the expiration of the date and illegally executed the security right by making registration before Nonparty 4. Thus, the defendant should compensate for damages suffered by the plaintiff due to the loss of ownership in the forest of this case. Thus, as seen in the above facts finding, it can be seen that the defendant extended the repayment date of the above loan only until December 15, 1978, and it is consistent with the fact that the above repayment date was postponed by January 20, 1979, and there is no evidence to prove that part of Non-party 1's testimony and part of the result of the record verification (except for the part above trust) cannot be trusted, and it is no other evidence to prove otherwise.

Therefore, as of December 15, 1978, after the due date for which the defendant had been postponed, the procedure for the ownership transfer registration was completed with respect to the forest land of this case to Nonparty 2 as of January 15, 1979, and it cannot be deemed that there was a legitimate exercise of security right (it cannot be deemed that provisional registration under the name of Nonparty 2 alone was an exercise of security right). Thus, the above assertion is no longer necessary to determine further.

In order to liquidate the forest land of this case offered as a security for settlement on January 15, 1980 to other organizations, the plaintiff alleged that the amount of 2,199,80 won per the market price at that time was incurred by the plaintiff due to non-performance of the obligation which is the cause of the difference consultation, and that the remaining amount after deducting the principal and interest of the above amount from the above sale price was unjust enrichment without return, the non-party 1 and 2's testimony (excluding the part which is not trusted before and after the above), and the non-party 7's appraisal result of the non-party 7's appraisal of the above case, and the non-party 1 and the non-party 4's appraisal of the above case was decided as 00 won per the above 7th appraisal of the forest land at that time, and the non-party 1 and 5's appraisal of the forest land at that time was decided as 00 won per the above appraisal method and the purport of the appraisal of the above case at that time.

Since the determination of the above appraisal price should have been taken into account the cost of erosion control construction and fuel afforestation, the market price of the forest of this case at the time of January 15, 1980 shall be KRW 18,503,937 remaining after deducting KRW 22,961,42 won in wartime or KRW 734,441 won in fuel afforestation, which is the above appraisal price, from KRW 22,19,800,000, which is the above appraisal price, and KRW 18,503,937,000, which is the remainder after deducting KRW 2,961,422 won in wartime or KRW 734,441 in fuel afforestation expenses, and the defendant disposed of the forest of this case at a significantly lower price than this case and the method of disposal also transferred the ownership of the forest by means of payment in kind without finding out the existence of a legitimate market price or other party, so it shall not be deemed that the plaintiff faithfully fulfilled its duty of execution.

Therefore, this paper examines the amount of damages and the amount of unjust enrichment to be paid by the defendant.

First of all, as to the amount of damages, the defendant disposed of this real estate of 18,503,937 won in the market price of 18,503,937 won in gold 6,000,000 won, and thus, 12,503,937 won in the difference is the amount of damages due to non-performance.

Next, with respect to the amount of unjust enrichment, when calculating the principal and interest which has not been repaid among the Plaintiff’s obligation in wartime against the Defendant, the sum of KRW 5,000,000, and the amount calculated from August 20, 1978 (the interest has been paid for one month from the date of rent) to January 15, 1979 at the rate of 25,000,000 per annum, which is the statutory maximum interest rate, as of January 15, 1979 (5,00,000 x 00 x 0.25/124 x 27/31) shall be 5,507,392, and the Defendant’s unjust enrichment shall be 6,00,000 for the above sale price, and it shall be 492,608,000,000 for the remainder after deducting the above principal and interest from the above obligation. The Defendant shall be a malicious profit.

Therefore, the defendant is obligated to pay to the plaintiff the above sum of KRW 12,96,545 (12,503,937 + 492,608 Won) and damages for delay at the rate of 5% per annum in civil law from April 10, 1980 to the full payment system, which is the next day after the above settlement date for the above sum of the above sum amount to the plaintiff (12,503,937 Won + unjust enrichment 492,608 Won) and the above settlement date for these amounts. Thus, the plaintiff's claim for this case is legitimate within the above recognition scope, and the remaining claims are unfair, and the part against the defendant ordering payment in excess of the above recognition among the original judgment with a different conclusion is unfair, and the defendant's remaining appeal is dismissed as without merit. All of the costs of lawsuit are 8 minutes with the first and second trials, and the remainder is decided as per Disposition by the plaintiff.

Judges Lee Dong-gu (Presiding Judge) Lee Dong-gu (Presiding Judge)