[1] The method to adjust the amount of dividends to the creditor of provisional seizure in cases where the amount of claims preserved for provisional seizure finalized in the judgment on the merits falls short of the amount of claims claimed for provisional seizure after the amount of dividends to the creditor of provisional seizure is deposited

[2] In a case where a final and conclusive judgment on the merits of a provisional seizure became final and conclusive that only a part of the principal of the preserved claim remains, whether the remainder of the principal and the damages for delay recognized as identical to the basis of the claim are included in the preserved claim of provisional seizure (affirmative in principle), and in a case where the amount of preserved claim established in the final and conclusive judgment on the merits of a provisional seizure falls short of the amount of claim of provisional seizure, the amount

[3] In a case where only the right to be preserved, the whole amount of which is insufficient to be paid as a result of a lawsuit on the merits of provisional seizure, is determined and the additional dividends should be distributed to other distribution creditors, whether the provisional seizure obligee unjust enrichment (negative)

[1] The effect of provisional seizure is limited to the amount of the preserved claim against which the provisional seizure is requested. Thus, the amount recorded as the amount of the preserved claim (hereinafter “amount of claim for provisional seizure”) in the decision of provisional seizure becomes the basis for calculating the amount of dividends against the creditors subject to provisional seizure. When the distribution court distributes dividends, the dividends court shall deposit the preserved claim against the creditors subject to provisional seizure. If the creditors subject to provisional seizure submit a final judgment, etc. when the existence of preserved claim becomes final and conclusive by the final and conclusive judgment, etc. on the merits, the dividends court shall have the creditors subject to provisional seizure pay the amount of dividends to the creditors subject to provisional seizure (Articles 160(1)2 and 161(1) of the Civil Execution Act). In this case, if the finalized preserved claim amount is more than the claimed amount, the whole amount of dividends to the creditors subject to provisional seizure shall be paid to the creditors subject to provisional seizure, but if the amount of the preserved claim finalized by the provisional seizure claim amount falls short of the claimed amount, the execution court shall calculate the amount of dividends between other creditors subject to provisional seizure.

[2] Even in cases where the final and conclusive judgment on the merits of the provisional seizure became final and conclusive to have only a part of the principal of the preserved claim, barring any special circumstance, the remaining principal and damages for delay recognized as the basis of the claim are included in the scope of preserved claims. If the added amount exceeds the claimed amount of provisional seizure, the amount of dividends should be adjusted on the basis of such amount. In addition, the purpose of calculating the dividend rate again between the distribution creditors and the distribution creditors is to conclude the distribution procedure temporarily withheld within the scope of the provisional seizure, and it is reasonable to adjust the remaining amount of claims between the other distribution creditors at the time of adjustment of dividends against the provisional seizure, barring any special circumstance, based on the adjusted amount of claims based on the amount of claims calculated by adding damages for delay to the date of the previous distribution.

[3] In a case where it is found that only the preserved right to be paid in full becomes final and conclusive as a result of the principal lawsuit, and it is necessary to additionally distribute dividends to other distribution creditors, the provisional seizure obligee did not have the right to claim the payment of dividends for the portion of the original dividend amount from the beginning. Thus, the provisional seizure obligee cannot be deemed as unjust enrichment for the part of its claim.

[1] Articles 160(1)2 and 161(1) of the Civil Execution Act / [2] Articles 160(1)2 and 161(1) of the Civil Execution Act / [3] Article 741 of the Civil Act, Articles 160(1)2 and 161(1) of the Civil Execution Act

[1] Supreme Court Decision 2003Da32681 Decided April 9, 2004 (Gong2004Sang, 795) / [2] Supreme Court Decision 95Da22788 Decided February 28, 1997 (Gong1997Sang, 886) / [3] Supreme Court Decision 2001Da72401 Decided September 4, 2002

Korea Credit Guarantee Fund (Law Firm Hun-Ba, Attorneys Yu Byung-il et al., Counsel for the defendant-appellant)

Small and Medium Business Corporation (Attorney Cho Sung-sung, Counsel for defendant-appellant)

Incheon District Court Decision 2010Na9436 Decided August 11, 2011

The part of the judgment below against the defendant is reversed, and that part of the case is remanded to the Incheon District Court Panel Division. The plaintiff's appeal is dismissed.

The grounds of appeal are examined. 1. Judgment on the Plaintiff’s grounds of appeal

A. As to the misapprehension of legal principles as to the legal nature of the right to be preserved for provisional seizure, the court below held that the amount of the first and second provisional seizure of this case was a part of the loan claim of this case in order to preserve the same loan claim of this case. Thus, the court below held that the preserved claim of this case 1 and second provisional seizure of this case was not divided into the claims without the plaintiff's guarantee and the claims with guarantee

Examining the reasoning of the lower judgment in light of the relevant legal principles and evidence duly admitted, the lower court did not err by misapprehending the legal doctrine on the legal nature of the preserved claim against provisional seizure, as otherwise alleged in the ground of appeal.

B. As to the misapprehension of legal principles as to the scope of preserved claims

(1) The effect of provisional seizure is limited to the amount of preserved claims for which provisional seizure is requested. Thus, the amount stated as the amount of preserved claims in the decision of provisional seizure (hereinafter “amount of claims for provisional seizure”) shall be the basis for calculating the amount of dividends to creditors subject to provisional seizure. When dividends are distributed by the distribution court, the secured claims of creditors subject to provisional seizure shall be deposited. If the creditor subject to provisional seizure submits a final judgment, etc. when the existence of preserved claims becomes final and conclusive by a final and conclusive judgment, etc. on the merits, the distribution court shall pay the amount of dividends to the creditor subject to provisional seizure (Articles 160(1)2 and 161(1)

In this case, if the amount of the preserved claim finalized is more than the amount of the claim for provisional seizure, the whole amount of the dividends to the creditor for provisional seizure shall be paid to the creditor for provisional seizure, but if the amount of the preserved claim finalized by the court of execution falls short of the amount of the claim for provisional seizure, the court of execution shall calculate the distribution rate again between other creditors for provisional seizure based on the amount of the preserved claim established, and adjust the amount of the dividends to reduce the amount, and pay only the adjusted amount of the deposit to the creditor for provisional seizure, and additionally distribute the remainder to other creditors for provisional seizure (see Supreme Court Decision 2003Da3268

Meanwhile, even in cases where a final and conclusive judgment on the merits regarding provisional seizure became final and conclusive that only a part of the principal of the preserved claim remains, barring any special circumstance, the remaining principal and damages for delay recognized as the basis of the claim are included in the scope of preserved claims (see, e.g., Supreme Court Decision 95Da22788, Feb. 28, 1997). If the added amount exceeds the claimed amount of provisional seizure, the amount of dividends should be adjusted based on the amount of dividends if the added amount falls short of the claimed amount of provisional seizure. In addition, the purpose of paying a reduced amount of dividends which have been re-deposited between the distribution creditors is to set the final and conclusive distribution procedure within the scope of provisional postponement. Considering that it is difficult to verify all remaining claims between the creditors of provisional seizure and other creditors at the time of adjustment of dividends, the amount of dividends should be calculated based on the amount of dividends on the previous claim on the basis of the deposit on the basis of the amount of dividends on the date of provisional seizure adjusted to the other creditors.

(2) Examining the reasoning of the judgment below in light of the above legal principles and the records, it is justifiable to determine that the dividends were distributed in the previous distribution procedure based on the aggregate of the claims amount of the provisional attachment order of this case 1, 2, and 1,331,954 won in the previous distribution procedure, and the amount was deposited in the defendant, who is the creditor of the provisional attachment, for the first and second provisional attachment of this case, and that only some principal and damages for delay are remaining in the payment order of this case due to the partial extinction of the preserved claim of the first and second provisional attachment of this case, and that even if the remainder of this case and the damages for delay incurred by November 23, 2007, which are the previous date of distribution, do not reach the aggregate of claims amount of the first and second provisional attachment, the court below should have determined that the amount of damages for delay should be included in the amount of claims for the first and second provisional attachment of this case within the scope of the aggregate amount, but it should be calculated beyond the payment order of the previous payment order and should be included in the amount of claims for delay.

(3) However, if it is found that only the preserved right that is insufficient to be paid in full as a result of the lawsuit on the merits became final and conclusive and that additional dividends are to be paid to other distribution creditors as seen earlier, the provisional seizure creditor did not have the right to claim the payment of dividends for the portion out of the original dividend amount from the beginning (see Supreme Court Decision 2001Da72401, Sept. 4, 2002). Thus, the provisional seizure creditor cannot be deemed to have unjust enrichment of its partial claim.

Therefore, in this case where it is revealed that it is a case where additional dividends are to be made, the defendant cannot be deemed as unjust enrichment of the defendant's right to claim the payment of dividends corresponding to the portion to be additionally distributed to other distribution creditors. Thus, the judgment of the court below which denied the defendant's unjust enrichment in relation to the damages for delay incurred from the date following the previous distribution date until May 20, 209 for which the above payment order became final and conclusive is just in that conclusion, and it cannot

2. Judgment on the Defendant’s grounds of appeal

A. As to erroneous determination of facts as to the Plaintiff’s prior right to indemnity

Examining the reasoning of the lower judgment in light of the evidence duly admitted, the lower court did not err in its judgment that the Plaintiff, on the grounds in its reasoning, could exercise prior right to reimbursement against the Nonparty, a joint and several surety, against logical and empirical rules and beyond the bounds of the principle of free evaluation of evidence, contrary to what is alleged in the grounds of appeal.

B. As to the misapprehension of legal principles as to the defendant's unjust enrichment

The amount distributed to the defendant in relation to the decision of provisional attachment Nos. 1 and 2 of this case was deposited, and the defendant has not yet received the amount, and the sum of the principal remaining in the order of payment on the merits and damages for delay incurred on the previous date of distribution falls short of the aggregate of the claim amount of provisional attachment Nos. 1 and 2 of the above dividends, the defendant may claim the execution court for the amount adjusted by reduction according to the distribution ratio again calculated with other creditors with the above dividends.

In light of the legal principles as seen earlier, with respect to the portion of the original dividend amount to be additionally distributed to other dividends creditors, the provisional seizure obligee did not have the right to claim the payment of dividends from the beginning, and thus, it cannot be deemed that the claim for the payment of dividends was unjust. In light of the legal principles as seen earlier, the Defendant cannot be deemed to benefit from the claim for the payment of dividends regarding

Nevertheless, the lower court, on the basis of the circumstance that the total sum of the principal and delay damages remaining in the order for payment of dividends on the merits of this case is less than the total sum of the claims for provisional attachment order of this case 1 and 2, and the adjustment of reduction is necessary, solely based on the circumstances that the amount of reduction is less than the sum of the claims for provisional attachment order of this case 1 and 2, deemed that the Defendant acquired the claim for payment of the difference in excess of the adjusted amount of reduction recognized by the lower court out of the dividends distributed to the Defendant without legal cause, and accepted the Plaintiff’s claim seeking partial transfer of the claim for payment of dividends of this case to other

3. Conclusion

Therefore, the part of the lower judgment against the Defendant is reversed, and that part of the case is remanded to the lower court for further proceedings consistent with this Opinion. The Plaintiff’s appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Shin Young-chul (Presiding Justice)