Whether unjust enrichment is made in case where the mortgaged creditor has received the total amount of the successful bid price without a demand for distribution of a tax claim having preferential right to repayment in a voluntary auction against the ship by failing to notify the auction date date.

The plaintiff's respective tax claims against the non-party Gap and Eul can be repaid preferentially from the proceeds from the sale of the above ship in accordance with the proviso of Article 31 (2) 3 of the Local Tax Act, but the court of auction failed to notify the plaintiff of the auction date and failed to demand a distribution on the date of distribution. If the defendant offsets the entire proceeds from the auction as the successful bidder by the amount of his own claim, the defendant obtained the profits equivalent to the acquisition tax against the above non-party without any cause, and the loss of the equivalent amount to the plaintiff was inflicted on the plaintiff, and the defendant shall return the proceeds to

Article 741 of the Civil Act, Articles 41 and 33 of the Auction Act, Article 614 of the Civil Procedure Act

Supreme Court Decision 72Da503 delivered on June 13, 1972 (Daad 10167, Supreme Court Decision 20Da2010 delivered on June 13, 1972, Supreme Court Decision 741(29)502 of the Civil Code

Busan City

National Federation of Fisheries Cooperatives

Busan District Court (70Da3902)

The original judgment shall be revoked.

The defendant shall pay to the plaintiff the amount of KRW 7,214,779 and the amount at the rate of five percent per annum from October 16, 1970 to the full payment day.

All the costs of lawsuit shall be borne by the defendant through the first and second trials.

The judgment of the court and the declaration of provisional execution as stated in the Disposition 2 and 3

The same shall apply to the order.

7. Acquisition tax was levied on the non-party 1 and the non-party 6. The non-party 1 and the non-party 6. The non-party 1 and the non-party 6. The non-party 1 and the non-party 6. The non-party 1 and the non-party 6. The non-party 1 and the non-party 6. The non-party 6. The non-party 1 and the non-party 6. The non-party 1 and the non-party 6. The non-party 1 and the non-party 6. The non-party 6. The non-party 1 and the non-party 6. The non-party 6. The non-party 1 and the non-party 6. The non-party 2 were the non-party 1 and the non-party 2 were the non-party 6. The non-party 1 and the non-party 1 and the non-party 2 were the non-party 6. The non-party 1 and the non-party 2 were the non-party 1 and the counter-party 3.

In this case, the plaintiff's taxation claim against the non-party 1 corporation and the non-party 2 can obtain preferential repayment from the proceeds from the sale of the above ship under the proviso of Article 31 (2) 3 of the Local Tax Act, but the court of auction did not notify the plaintiff of the auction date and did not make a demand for distribution on the date of distribution, and the defendant set off the entire proceeds from the successful bid price against his own claim. The defendant without any cause, obtained profits equivalent to the acquisition tax amounting to KRW 7,214,79 against the above non-party 1, and suffered losses to the plaintiff. Thus, the defendant should return the above amount to the plaintiff as unjust enrichment.

Therefore, the defendant's legal representative assigned the vessel to the above non-party who is the end user selected by the government with the introduction of the vessel by proxy of the government as the free-of-day loan to the above non-party, and paid the price in installments for seven years after two years. However, once the ship preservation registration was made in the name of the end user, the ship price was made in the name of the above end user, etc. after the establishment of the right to collateral security, and the defendant made a loan to the above end user, etc., and the ship price was not paid in the form of the right to collateral security, and the ship price was not paid in the form of a loan under the agreement, and thus, the ship was recovered in the form of the right to collateral security. Thus, the defendant merely taken measures to recover the vessel under the name of the government in the name of the defendant. Therefore, it is clear that the above non-party's assertion that the defendant did not lend the vessel price to the above non-party. Therefore, the above non-party's legal representative does not have any profit to the defendant, or that it should be imposed acquisition tax.

As the acquisition tax does not fall under the so-called one-year tax and other public imposts as referred to in Article 602 (1) 2 and 3 of the Civil Procedure Act, the defendant's attorney asserts that the claim for this case under the premise that the priority of the plaintiff's tax claim exists is unfair. However, even if the acquisition tax is not a public charge as referred to in Article 31 of the Local Tax Act, it is obvious that the plaintiff has the right to receive preferential repayment for the proceeds from the sale of taxable goods under the provisions of Article 31 of the Local Tax Act, and that the plaintiff's claim is made based on this right.

In addition, Defendant 1’s legal representative argues that acquisition tax cannot be imposed pursuant to Article 108(2) of the Local Tax Act because the vessel imported from Japan as the fund for large-day claims is a vessel imported from Japan. Thus, the Plaintiff’s disposition on imposition of acquisition tax is invalid. However, the vessel was introduced from Japan as the fund for large-day claims free of charge from the government to the Nonparty and was sold to the Nonparty, and there are no materials to recognize that it is a vessel that can not be constructed in Korea. Thus, the vessel cannot be seen as non-taxation. Thus, the above assertion is groundless.

Finally, the defendant's legal representative submitted an application for an official inspection to an auction court through the Korea Assets Management Corporation delegated by the defendant, and the auction court shall investigate and report on the existence of public charges to the above non-party's office on a daily basis, and the amount of the official inspection by the report is 260,595 won for 12 ships. Thus, even if the claim for return within the scope is made, the plaintiff's claim for this case is unfair, and the defendant's right of claiming priority as a lawsuit against the creditor who received dividends pursuant to the distribution schedule is limited to the person who newly established the objection in the distribution procedure. Thus, the distribution procedure becomes final and conclusive, and the plaintiff's claim for return against the defendant who received dividends in excess of the above amount of the public charges after the auction procedure is completed, but only because the plaintiff did not enter in the investigation report by the date of the auction procedure, the claim for the tax against the acquisition tax imposed by the above non-party and the exercise of its right is not extinguished or hindered, and if the defendant did not have the right to dividends under the Civil Procedure Act.

Therefore, the defendant is obligated to pay damages for delay at the rate of five percent per annum under the Civil Code from October 16, 1970 to the date of completion of the above recognition's unjust enrichment 7,214,779 won, and the above mentioned above-mentioned case's claim is reasonable. Thus, the plaintiff's claim for performance is justified. Since the original judgment different from this purport is unfair, the court below's decision is revoked pursuant to Article 386 of the Civil Procedure Act and the provisional execution is unnecessary, and it is decided as per the disposition by applying Articles 89 and 95 of the same Act with respect to the burden of litigation costs.

Judges Choi Hon-ro (Presiding Judge) Kim Jong-ju