The Defendants, as collateral security holders, are obligated to return the amount distributed to the Plaintiff upon the Plaintiff’s participation in the public auction procedure as unjust enrichment.

Although the right to collateral security in the name of the Plaintiff on the instant real estate could be recovered according to the court ruling, the third party was awarded a successful bid and terminated before its recovery, the Defendants are obligated to return the amount that the Plaintiff would have received upon the participation in the public auction procedure as the right to collateral security.

Article 35 of the Framework Act on National Taxes

2011 relative 73001 Return of unjust enrichment

XX Kim

Sung-si et al. and two others

March 29, 2012

May 3, 2012

1. The Plaintiff:

A. The amount calculated by applying each of the following rates to KRW 000 per annum from October 11, 2011 to May 3, 2012, and 20% per annum from the following day to the date of full payment:

B. Defendant Republic of Korea shall pay 00 won and the interest thereon at each rate of 5% per annum from October 13, 201 to May 3, 2012, and 20% per annum from the next day to the day of full payment.

2. The plaintiff's remaining claims against the defendant Seocheon-si are dismissed.

3. The costs of lawsuit shall be borne by the Defendants.

4. Paragraph 1 can be provisionally executed.

In addition to seeking the payment of the principal amount of KRW 000 to Seocheon-si, it is the same as the disposition.

1. Presumption

A. On June 8, 2007, the Plaintiff entered into a sales agreement with the KimA on Masung-si map 409-1, 409-9, and 412, and completed the registration of ownership transfer on August 31 of the same year, and completed the registration of ownership transfer on September 3, 200, as KimA did not pay 00 won, the Plaintiff was drafted a notarized promissory note equivalent to the same amount on September 3 of the same year.

B. However, on December 24, 2007, when KimA did not pay the above purchase and sale balance to the Plaintiff, on the part of December 24, 2007, entered into a sales contract for state property, the sales contract of which amounted to KRW 000,000,000 for the Gyeonggi-gun Embry Embri 648-7 Factory 146m2 (hereinafter “instant real property”), and did not pay the remainder except the down payment.

C. Accordingly, as KimA was at the risk of rescinding the above sales contract from the country, the Plaintiff loaned the remainder of KRW 000, late payment KRW 000, registration tax, KRW 000, and KRW 000,000 for certified judicial scrivener’s expenses to KimA on July 3, 2008.

D. On July 8, 2008, KimA received the registration of ownership transfer on the instant real estate from the Plaintiff on the same day, and entered into a mortgage agreement with the Plaintiff, which sets forth the maximum amount of the claims amount as KRW 000 on the said real estate (hereinafter referred to as the "mortgage agreement of this case"). On the same day, Suwon District Court received 98927 from Sungwon District Court, the registration of ownership transfer under the Plaintiff's name (hereinafter referred to as the "mortgage creation registration") was completed.

E. Meanwhile, on July 21, 2009, KimA filed a lawsuit against the plaintiff et al. on the ground that the act of establishing the above collateral security by KimA constitutes a fraudulent act (Seoul Central District Court Decision 2009Gadan271363).

(f) On April 15, 2010, the court of first instance rendered a judgment to revoke the mortgage contract of this case between KimA and the plaintiff on the ground that the above act constituted fraudulent act (hereinafter "the judgment of the court of first instance") and ordered KimA to implement the registration procedure for cancellation of the registration of cancellation of the establishment of a mortgage of this case (hereinafter "the judgment of this case"). The plaintiff appealed on May 10, 2010, but the court of first instance issued an order to dismiss the petition of appeal on the ground that the above appeal was filed after the lapse of the appeal period, and the plaintiff filed an immediate appeal (Seoul High Court 2010Ra928). The appeal court revoked the above order of appeal on September 10 of the same year on the ground that the original copy of the judgment of this case was served by the plaintiff, not by living together with the plaintiff, and therefore, the service of the original copy of the judgment is unlawful, and therefore, the plaintiff's appeal was dismissed within the above appeal period.

H. On May 27, 201, the appellate court in the case of the claim for revocation of the above fraudulent act, etc. was found to have been in excess of the obligation at the time of the establishment of the right to collateral security. However, since it was recognized that KimA borrowed money from the plaintiff in excess of the purchase price of the real estate in this case and used the purchase price and the transfer expenses for the transfer of ownership, etc., the joint collateral of the existing creditors cannot be said to have been reduced through the aforementioned series of acts before and after the above series of acts. In such a case, on the ground that only the act of offering collateral against the plaintiff by KimA cannot be deemed to constitute a fraudulent act, the appellate court revoked the judgment of the first instance of this case and sentenced the judgment that dismissed the claim of the O-backedO (hereinafter referred to as the "the second judgment of this case"). Accordingly, it was finalized as of June 18 of the same year because the parties did not file an appeal against it.

I. Meanwhile, on the ground of the instant judgment on May 31, 2010, theO-backed securitization applied for the commencement of compulsory auction on the instant real estate to the Suwon District Court on June 25 of the same year after cancelling the registration of the establishment of the instant real estate on the ground of the instant judgment on May 31, 2010, and the decision was rendered on June 25 of the same year. The application for the commencement of compulsory auction on September 20 of the same year was dismissed and the auction procedure was in progress on the said real estate.

(j) On January 18, 201, KimCC awarded a bid for the instant real estate in the public sale procedure and completed the registration of ownership transfer under its name, and the proceeds therefrom were distributed to the creditors of KimA. The sum of the proceeds was KRW 000 in total, KRW 300 in total, and KRW 00 in Defendant Seocheon-si, and KRW 00 in total, KRW 5 in total.

(j) On the other hand, on July 8, 2010, the Plaintiff filed a lawsuit against KimA, etc. seeking the implementation of the procedure for cancelling the registration of cancelling the instant right to collateral security (this Court 2010Gahap13764), separately from the judgment of the second instance, and withdrawn the instant real estate on August 19, 201, which was after the successful bid.

[Reasons for Recognition] Unsatisfy, Gap evidence 1 to Gap evidence 12 (including each number), the purport of the whole pleadings

2. Return of unjust enrichment:

A. The mortgage right is not immediately extinguished solely on the ground that the registration of the establishment of the collateral on the real estate was completed, and the registration was cancelled without any cause. However, since the right to collateral exists on the real estate at the time of a successful bid at the auction procedure without any cause, the right to collateral security, which existed after the cancellation of the registration of the collateral security, is naturally extinguished, if the auction procedure was conducted at the request of the right holder, such as another right holder with respect to the real estate at the time of the successful bid after the cancellation of the registration of the collateral security without cause, and the successful bidder paid the successful bid price in full, the right to collateral security cancelled without cause. Furthermore, the right to collateral security cancelled without cause is extinguished on the ground that the registration of the establishment of the collateral was illegally cancelled, and the amount equivalent to the amount of the credit secured at the auction procedure on the real estate was not paid at all at all, due to the fact that the registration of the creation of the collateral security was not completed, and it can only be claimed for the payment of dividends to the person who actually received the dividends at the auction procedure within the limit of the registration of cancellation of the extinguished collateral security.

B. We examine the instant case. According to the facts found in the preceding paragraph, although the right to collateral security in the Plaintiff’s name on the instant real estate could be recovered pursuant to the second instance judgment that the act of establishing collateral security in the instant real estate was not a fraudulent act, the right to collateral security in the instant real estate could not be recovered before its recovery, the right to collateral security in the instant real estate would have been extinguished by being awarded a successful bid by KimCC in the instant public sale procedure, and accordingly, the Plaintiff, who did not fully receive dividends equivalent to the secured claim in the instant public sale procedure, could seek a return of unjust enrichment against the Defendants who actually received dividends during the instant public sale procedure, which would have not been revoked within the limits of the dividend amount. Therefore, barring any special circumstance, the Defendants are obligated to return the amount distributed to the Plaintiff in accordance with the order of priority if the Plaintiff had participated in the said public sale procedure as a mortgagee of the said real estate.

3. Scope of unjust gains;

(a) Facts of recognition;

The facts of July 8, 2008 on the date on which the establishment registration of the neighboring mortgage of this case was completed under the Plaintiff’s name are recognized as above. On the other hand, the legal date of the Defendants’ claims, such as taxes on KimA, etc., prior to the date of establishment of the above right to collateral security is 00 won out of the pertinent claim of KRW 000, which was distributed in the second order at the market price of the Defendant Cho Sung-sung, and the claim of KRW 00,000, automobile tax among the claims allocated in the fourth order at the market price of the Defendant Cho Sung-sung, which was distributed in the third order at the market price of the Defendant Cho Sung-sung, can be recognized by taking into account the following arguments: (a) there is no dispute between the parties; or (b) evidence Nos. 13, 1, 2, 1-1, 2-1

B. Determination

According to the above facts, barring any special circumstance, the Plaintiff is obligated to pay 000 won, which is the remainder after deducting the above tax and acquisition tax from the total amount of 000 won already distributed in the above public sale procedure; 000 won, which is the remainder after deducting 000 won of the above automobile tax from the total amount of 000 won already distributed in the above public sale procedure; and 000 won, which is the remainder after deducting the above automobile tax from the total amount of 000 won already distributed in the above public sale procedure; 200 won, which is the total amount already distributed in the Republic of Korea, and from October 11, 201, which is the day following the delivery of a copy of the complaint of this case for the Defendant Republic of Korea; 5% per annum for the Defendant Republic of Korea from October 13, 2011 to May 3, 2012, and 20% per annum for delay from the next day to the day of full payment.

C. Determination as to the defendants' assertion

(1) As to this, the Defendants asserted to the effect that the joint collateral of existing creditors is reduced with respect to the portion exceeding KRW 00,00, which is the sum of the purchase price and transfer cost of the real estate of this case paid by the Plaintiff on behalf of KimA, among the mortgage contract of this case, the amount of the secured claim of this case, and the priority order of allocation as a general bond shall be determined for the remainder of the secured claim of this case. Accordingly, the Defendants’ claim that the amount should be returned to the Plaintiff should be determined by re-determination of unjust enrichment to the Plaintiff.

(2) Therefore, this case's right to collateral security in the name of the plaintiff can be claimed by means of filing a lawsuit with the court and can not be asserted as a means of attack and defense in the lawsuit (see, e.g., Supreme Court Decision 95Da4859, 48605, Mar. 13, 1998). As seen above, in the judgment of the second instance of this case, since the entire act of establishing collateral security against the plaintiff of KimA cannot be seen as a fraudulent act in the judgment of this case, since the claim against the plaintiff of Obacked against the plaintiff of Obacked was all dismissed and confirmed, it shall be restored in the state prior to the registration of cancellation of Obacked. Accordingly, as alleged by the defendants, the right to collateral security in the name of the plaintiff of this case shall be restored to the state prior to the registration of cancellation of Obacked. Therefore, since the contract of establishing collateral security on the part exceeding the above 000 won out of the secured amount constitutes a fraudulent act, the defendants should have separately filed a lawsuit with the court in order to recognize the general validity. No.

4. Conclusion

If so, the plaintiff's claims against the defendant Cho Sung-si and the defendant's Republic of Korea against all are justified, and all of them are accepted, and the plaintiff's claims against the defendant Seocheon-si are partly accepted within the extent of the above recognition, and it is so decided as per Disposition.