[1] The requirements for intervention by an independent party

[2] The requirements for participation in prevention of harm under the latter part of Article 79(1) of the Civil Procedure Act

[3] In a case where it is proved that an execution claim under the executive title is extinguished after an assignment order became final and conclusive, the method of return of unjust enrichment by the executor creditor as to the extinguished part, and whether exercising the entire claim as the whole creditor before such return goes against the good faith principle (negative)

[1] Article 79(1) of the Civil Procedure Act / [2] Article 79(1) of the Civil Procedure Act / [3] Articles 2 and 741 of the Civil Act, Article 229 of the Civil Execution Act

[1] [2] Supreme Court Decision 98Da4852, 48569 delivered on May 28, 1999 (Gong1999Ha, 1277) Supreme Court Decision 99Da3531, 35348 delivered on September 28, 2001 (Gong2001Ha, 2348) Supreme Court Order 2005Ma814 delivered on October 17, 2005 (Gong2005Ha, 1921) / [2] Supreme Court Decision 2002Da694, 700 delivered on June 13, 200 (Gong203Ha, 1524) / [3] Supreme Court Decision 95Da454639 delivered on June 28, 196; 2005Da46305 delivered on June 29, 205

Plaintiff 1 and 34 others (Law Firm Shin & Kim, Attorney Kang Jae-hun, Counsel for the plaintiff-appellant)

Korea Smat Bank, Inc.

Incheon Metropolitan City (Attorney Han-soo et al., Counsel for defendant-appellant)

Seoul High Court Decision 2004Na67655, 67662 decided June 16, 2005

The judgment below is reversed, and the case is remanded to Seoul High Court.

We examine the grounds of appeal.

1. As to the ground of appeal on whether the application for intervention by the independent party of this case is legitimate

A. On December 24, 1997, the Plaintiffs received an order of indirect compulsory enforcement (hereinafter “instant indirect compulsory enforcement order”) from an independent party intervenor as the title of execution on December 24, 1997, with regard to the claim claim against the Defendant (hereinafter “instant indirect compulsory enforcement order”), and accordingly, filed a lawsuit against the Defendant seeking payment of the entire claim. Meanwhile, the Intervenor lost the validity of the above indirect compulsory enforcement order by excluding the executor’s executory power of the said indirect compulsory enforcement order through the confirmation of the suit of objection raised by the Intervenor against the said indirect compulsory enforcement order. Accordingly, the Plaintiffs participated as an independent party and sought to transfer the entire claim and restore the said assignment order to the original state against the Plaintiffs on the ground that the possession of the entire claim is unjust enrichment.

B. Inasmuch as an independent party intervenor seeks to claim that the whole or part of the subject matter of a lawsuit is his/her own right, or that a third party asserting that the subject matter of a lawsuit is infringed upon by the result of a lawsuit as a party, and then to resolve in a lump sum without contradictions between the two parties or a legal relationship, the independent party intervenor must make a claim that is incompatible with the plaintiff's principal claim with both or one party of the lawsuit to be participated first, and the claim may be established by his/her own assertion in addition to the benefit of the lawsuit (see Supreme Court Order 2005Ma814, Oct. 17, 2005).

C. Whether the application for intervention by the independent party of this case is legitimate as an intervention in the petition of right

(1) The intervenor excluded the executory power of the decision of indirect compulsory execution of this case, which is the executive title of the claim attachment and assignment order, by the confirmation of the objection raised above. Thus, if the purport of the above argument is interpreted to the purport that the above claim attachment and assignment order was invalidated or invalidated, the entire claim cannot be transferred to the plaintiffs according to the above assignment order which is null and void, and therefore the intervenor's claim against the plaintiffs who did not own the entire claim is groundless in itself.

(2) If the purport of the Intervenor’s assertion is based on the determination of the above claim objection suit, and the enforcement force of the instant indirect compulsory performance decision was excluded, and the purport of the Plaintiffs’ holding the entire claim of this case based on the assignment order constitutes unjust enrichment and thus seeking the return thereof, the Intervenor’s right to claim the return of unjust enrichment is based on the premise that the Plaintiffs have the right to claim the return of unjust enrichment with respect to the Defendant, and thus, it is compatible with the Plaintiffs’ claim.

(3) Therefore, the Intervenor’s independent party intervention against the Plaintiffs is deemed to have failed to meet the requirements for participation as a right intervention.

D. Whether the application for intervention by the independent party of this case is legitimate as an intervention in prevention of harm

Even if the participation in the instant case is considered as a participation in the prevention of corruption, it should be recognized that the plaintiff and the defendant objectively recognized that they have intent to harm a third party through a lawsuit and that the result of the lawsuit could infringe on the third party's rights or legal status (see Supreme Court Decision 98Da4852, 48569 delivered on May 28, 199). However, even according to the record, it is difficult to recognize that the principal lawsuit against the defendant against the defendant against the plaintiffs, seeking payment of the entire amount of claims, is a private lawsuit to harm the intervenor. Thus, the intervenor's independent party participation did not meet the requirements for participation as an intervention in the prevention of corruption.

E. Sub-committee

Thus, the independent party participation in this case is deemed to be unlawful, and even if the court below did so, it did not err by misapprehending the legal principles on participation in the independent party, which affected the conclusion of the judgment.

2. As to the ground of appeal on the claim of the principal lawsuit

A. The judgment of the court below

The lower court determined that the Plaintiff et al. received an indirect compulsory enforcement order of this case on February 7, 1998, with the exception of Plaintiff 27, retroactively from March 1, 1994, and excluded Plaintiff 27 from appointment on the ground of falling short of the appointment standard on March 7, 1998, on the ground that the above retroactive appointment order was unlawful, and that the above retroactive appointment order was revoked on May 4, 1998 by the Superintendent of Incheon Metropolitan City and the Director of Incheon junior college requested reexamination to the Teachers Disciplinary Review Committee of the Ministry of Education on the ground that the above retroactive appointment order was invalid, and that the Plaintiff et al. received an indirect compulsory enforcement order of this case on March 16, 1998, with the exception of the above indirect compulsory enforcement order of Plaintiff 27, and that the Plaintiff et al. received an indirect compulsory enforcement order of this case on March 16, 1998.

B. However, we cannot accept the above determination by the court below for the following reasons.

In the compulsory execution procedure against a monetary claim based on an executive title, even if the executive claim indicated in the executive title has been extinguished, if the compulsory execution procedure continues to proceed without lawfully revoking or suspending a claim through a lawsuit demanding objection, etc. and the execution order becomes legally final and conclusive, barring any special circumstance, the effect of the entire claim transferred to the entire creditor pursuant to an assignment order established solely on the extinguishment of the executive claim cannot be denied (see Supreme Court Decisions 95Da45460, Jun. 28, 1996; 2004Da7024, Apr. 15, 2005; 2004Da7024, Apr. 15, 2005; 2004Da7024, etc.). Thus, in a case where it is proved that the executive claim under the executive title has been extinguished after the assignment order became final and conclusive, the executive creditor cannot seek the full amount of the claim transferred to the execution creditor as unjust enrichment from the execution obligor’s relationship with the execution obligor.

According to the reasoning of the judgment of the court below, the plaintiff et al. filed an application for the attachment and assignment order of the claim against the defendant against the plaintiff with the title of execution of the claim for compensation of the indirect compulsory performance of this case, and the compulsory execution procedure continued without lawful revocation and suspension through the lawsuit of objection, etc., and the seizure and assignment order of the claim became lawful. Thus, the plaintiff et al. can exercise the entire claim against the defendant as the whole creditor regardless of whether the claim for compensation of the indirect compulsory performance of this case has been extinguished or not in accordance with the above legal principles, and such exercise of the right cannot be deemed to

Therefore, the judgment of the court below contrary to this is erroneous in the misapprehension of legal principles as to assignment order, the validity of indirect compulsory performance order, and the principle of good faith, which affected the conclusion of

3. Conclusion

Therefore, all of the judgment below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Jeon Soo-ahn (Presiding Justice)