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대법원 1986. 9. 23. 선고 86다카560 판결
[배당금반환][집34(3)민,66;공1986.11.15.(788),2946]
Main Issues

In case where a provisional registration under the name of a third party, which was made before the decision of permission for compulsory auction becomes final and conclusive after the decision of permission for auction has been made, and the successful bidder fails to acquire the ownership of the property at the successful bid, whether the creditor is unjust enrichment to receive the dividend from the proceeds of the successful bid.

Summary of Judgment

In a case where the decision to grant a successful bid on the real estate for the purpose of auction by an application for compulsory auction in the name of debt holder becomes final and conclusive, even if the successful bidder becomes unable to acquire the ownership of the real estate at the auction by means of a provisional registration in the name of a third party, which was made prior to the decision to commence the auction, on the basis of the provisional registration in the name of such third party, even if the ownership transfer registration has been made, the decision to grant the successful bid alone does not go to the effect that

[Reference Provisions]

Article 741 of the Civil Act

Plaintiff-Appellee

Plaintiff

Defendant-Appellant

Namyang-gun (Attorney Lee Ho-ho, Counsel for defendant-appellant)

Judgment of the lower court

Seoul High Court Decision 85Na3598 delivered on January 31, 1986

Text

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

Reasons

The grounds of appeal are examined.

According to the reasoning of the judgment below, the court below determined that the plaintiff's compulsory auction procedure in the judgment of the court below is null and void since the plaintiff paid the successful bid price in full, and the defendant received dividends from the successful bid price as a repayment of tax claim in the judgment against the debtor, and that the order preservation of the right to claim ownership transfer due to the purchase and sale reservation in the name of the non-party had already been registered before the decision of commencement of this case was made, but the non-party became unable to acquire the ownership of the auction property in this case because the non-party completed the principal registration based on the provisional registration, and therefore, the compulsory auction in this case was conducted for the real property owned by the non-party, not owned by the debtor since the procedure was conducted from the commencement of the compulsory auction, and therefore, the dividends that the defendant received from the bid price is unjust for the defendant's loss without any legal ground

However, in case where the decision of permission of auction on the immovables for auction purpose by a compulsory auction based on the name of debt becomes final and conclusive, even though the successful bidder was unable to acquire the ownership of the immovables because a transfer of ownership was registered in the name of a third party on the basis of provisional registration in the name of the third party which was made before the decision of commencement of auction was made, the decision of permission of auction was not null and void only for such reason, and thus, the creditor cannot be viewed as unjust enrichment that he acquired dividends that he received as the repayment of obligation out of the successful bid price without any legal reason. In addition, according to the records, the plaintiff cannot acquire the ownership of the immovables for the same reason as the time of the original adjudication. Thus, it is clear that the plaintiff cannot acquire the ownership of the immovables for auction purpose due to the same reason as the time of the original adjudication, the court below did not review the facts of the plaintiff's assertion and decide the return of the dividends to the defendant who is the dividend creditor on the ground of the debtor's insolvency, but the court below erred in the misapprehension of legal principles as to unjust enrichment or the principle of auction.

Therefore, the judgment of the court below is reversed, and the case is remanded to the court below. It is so decided as per Disposition by the assent of all Justices who reviewed the appeal.

Justices Lee Jae-hee (Presiding Justice)

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심급 사건
- 서울고등법원 1986.1.31선고 85나3598

따름판례

- 대법원 1992. 10. 27. 선고 92다5065 판결 [공1992.12.15.(934),3257]

평석

- 경락인의 채권자에 대한 배당금반환청구의 성질 이재성 韓國司法行政學會

관련문헌

- 박진 소득세법 조세법연구 (2) (96.09) / 세경사 1996

- 민일영 경매와 담보책임의 법리 : 임차주택의 경매를 중심으로 . 법조 53권 1호 (2004.01) / 법조협회 2004

- 박정훈 착오의 환지처분과 토지소유자 상호간의 부당이득의 성립 여부 민사판례연구 14권 / 박영사 1992

- 김형수 부동산경매에 있어서 몇가지 문제점 : 실제적인 문제를 중심으로 . 법과 정책 제6호 / 제주대학교 2000

- 민일영 주택의 경매와 임차인 보호에 관한 실무연구 경인문화사 2005

- 남효순 매매법개정의 착안점과 개정안 : 2000년 한국민사법학회 하계학술대회 발표논문 . 민사법학 19호 / 한국사법행정학회 2001

- 남윤봉 부당이득반환법리에 관한 연구 경남대학교 1990

- 양창수 부당배당과 부당이득반환청구 민법산고 (98.12) / 박영사 2007

- 이규철 경매의 목적이 된 권리가 타인에게 속한 경우와 담보책임 재판과 판례 16집 / 대구판례연구회 2008

- 민일영 주택 경매에 있어서 임차인 보호에 관한 연구 서울대학교 대학원 2004

- 서기석 가등기에 기한 본등기가 경료된 경우 낙찰자의 구제방법 대법원판례해설 29호 (98.06) / 법원도서관 1998

- 김상찬 경매에서의 매도인의 담보책임 법과 정책 제12집 1호 / 제주대학교 2006

- 황동룡 경락인수와 매도인의 담보책임 경영법무 통권35호 / 한국경영법무연구소 1997

- 김학준 경매절차의 무효와 담보책임 대법원판례해설 49호 (2004.12) / 법원도서관 2004

참조조문

- 민법 제741조

본문참조조문

- 민법 제578조

- 소송촉진등에관한특례법 제12조 제2항

원심판결

- 서울고등법원 1986.1.31 선고 85나3598 판결

기타문서

- 기타자료