[1] Where a creditor demanding a distribution has the right to demand a preferential reimbursement under the substantive law, but is excluded from the distribution because he/she failed to make a lawful demand for distribution, whether he/she may claim a return of unjust enrichment against the subordinate creditor receiving the distribution (negative)

[2] Whether the claim for return of deposit for lease under the Housing Lease Protection Act constitutes a claim for distribution requiring a demand for distribution (affirmative)

[1] Unlike the cases of creditors entitled to receive a distribution as a matter of course, such as the provisional seizure creditor registered prior to the entry into force of the seizure, the mortgagee extinguished by the successful bid, and the person having registered prior to the entry into force of the seizure, a distribution creditor who requires a distribution under Article 605(1) of the Civil Procedure Act, may receive a distribution only if he/she makes a distribution by the auction date, and in cases where he/she fails to make a lawful distribution by the auction date, even if there exists a right to preferential payment under the substantive law, he/she cannot receive a distribution from the auction price. Thus, if such right to demand a distribution fails to make a lawful distribution, and the distribution has been made and confirmed by the distribution schedule as being excluded from the distribution, and the distribution has been made in accordance with the finalized distribution schedule, the amount equivalent to the amount that could have been received a distribution shall not be deemed to have been distributed to junior creditors

[2] Claims for return of lease deposit for which the right to preferential reimbursement is recognized under the Housing Lease Protection Act are claims for demand for distribution under the current law.

[1] Article 605(1) of the Civil Procedure Act, Article 741 of the Civil Act, Article 3(1) and (2), and Article 3-2(1) of the Housing Lease Protection Act / [2] Article 605(1) of the Civil Procedure Act, Article 741 of the Civil Act, Article 3(1) and (2), and Article 3-2(1) of the Housing Lease Protection Act

[1] Supreme Court Decision 95Da28304 delivered on December 20, 1996 (Gong1997Sang, 342) Supreme Court Decision 96Da10263 delivered on February 25, 1997 (Gong197Sang, 865)

Plaintiff

Bank of Korea

Suwon District Court Decision 96Na9659 delivered on February 11, 1998

The appeal is dismissed. The costs of appeal are assessed against the plaintiff.

We examine the grounds of appeal.

Unlike the cases of creditors entitled to receive a distribution as a matter of course, such as the provisional seizure creditor registered prior to the entry into force of the seizure, the mortgagee extinguished by the auction, and the person having registered prior to the entry into force of the seizure, etc., the creditor entitled to receive a distribution under Article 605(1) of the Civil Procedure Act, may receive a distribution only if he/she makes a demand for distribution by the auction date. In cases where he/she fails to make a lawful demand for distribution, even if there exists a right to preferential payment under substantive Acts, he/she cannot receive a distribution from the successful bid price, even if there is a right right to demand a distribution. Therefore, if such right to demand a distribution fails to make a lawful demand for distribution, and the distribution has been made in accordance with the final distribution schedule, it cannot be said that there is no legal cause, on the ground that the amount equivalent to the amount that could have been received a distribution

Since a claim for return of lease deposit for which the right to preferential reimbursement is recognized under the Housing Lease Protection Act constitutes a claim for demand for distribution under the current law, the judgment of the court below to the same purport is just, and there is no error of law such as a theory of lawsuit. There is no reason for argument.

Therefore, the appeal is dismissed and all costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Jae-soo (Presiding Justice)