209Du21037 Return of unjust enrichment

○○ (53-years, Males)

Suwon-si District:

Attorney Han-soo et al.

[Defendant, Appellant]0

○○ (59-years, Males)

Kimpo-si

Attorney Park Jong-hoon, Counsel for the plaintiff-appellant

August 19, 2010

September 2, 2010

1. The defendant shall pay to the plaintiff 205, 420, 215 won and 5% per annum from March 20, 2008 to September 2, 2010, and 20% per annum from the next day to the day of full payment.

2. The plaintiff's remaining claims are dismissed.

3. Of the litigation costs, 55% is borne by the Plaintiff, and the remainder is borne by the Defendant, respectively.

4. Paragraph 1 can be provisionally executed.

The defendant shall pay to the plaintiff 455, 398, 006 won with 5% interest per annum from March 20, 2008 until the delivery date of the application for modification of the claim and the ground of appeal of this case, and 20% interest per annum from the next day to the date of full payment.

1. Basic facts

A. On January 3, 2007, the Plaintiff provisionally attached the real estate owned by Park○-○ by using KRW 844, 588,232, the principal and interest of the loan claim, as the claim claim, to preserve the Plaintiff’s loan claim against Park○-○, Daejeon District Court Branch of Hongsung (2007Kahap).

B. On the other hand, Park○-○ received the introduction by ○○ to borrow KRW 850,00,000 from the Defendant on June 7, 2007, with a view to raising the deposit money for the cancellation of the execution of the provisional seizure, and also borrowed KRW 850,00 from the Defendant on June 7, 2007. In addition, as security for the above loan, a notary public issued to the Defendant a promissory note with a face value of KRW 1,100,000,000 in total with the 00 to 00,000 of the 207 deed No. 207, a notary public issued to the Defendant as security and provided the right to collateral security with the Defendant on the real estate and the ship owned by Gab○-○○, etc. (hereinafter referred to as “the first loan of KRW 850,000,000 as to the Defendant Park○-○).

1) On the other hand, the plaintiff filed a lawsuit against the above GaoC on June 10, 200 with the court against the plaintiff 779, 850, and 000 won as the principal case against the plaintiff and 2007 Won as Seoul Central District Court 2007, 001, and 30% per annum from September 24, 2006 to the date of the claim for the repayment of loans.

The above judgment became final and conclusive around that time after a judgment was rendered to pay the money calculated at the rate.

C. Since then, Park Jong-○ was issued a decision to revoke the execution of provisional seizure by depositing KRW 844,588,232, the amount of the above provisional seizure claim amount in gold 00, 2007 with the above amount borrowed from the Defendant as the above amount of money borrowed from the Defendant. The Defendant received a collection order for the seizure and collection of the claim amount of KRW 800,000,000, out of the above amount of the deposit under the certificate of promissory Notes 6, 19, 2007 red support of the court located in the Daejeon District Court, Daejeon District Court, Daejeon District Court, with the monetary support of KRW 2007,00,000.

D. On September 12, 2007, with respect to the above amount of deposit in the Daejeon District Court, the court of execution distributed 433, 738, 741 won to the Plaintiff, who was the person holding the provisional attachment right, and 410, 840, 431 won to the other party, who was the person holding the provisional attachment right, (hereinafter referred to as "the first dividend") respectively.

E. The Plaintiff, who did not receive the total amount of loan claims due to the above Defendant’s dividends, did not make a provisional seizure of KRW 410, 849, and 491, the remaining credit after the distribution of dividends, with the claim claim amounting to KRW 410,849, and 491.

F. Since then, on October 23, 2007, Park○-○ borrowed KRW 400,000,000 from the Defendant to deposit KRW 400,849,491, the amount of the above provisional seizure claim as the deposit money in the Daejeon District Court in order to cancel the execution of the above provisional seizure, and was decided to cancel the execution of the above provisional seizure. The Defendant was also subject to the seizure and collection order for the above provisional seizure on the basis of the above promissory note (the above 400,00,000,000,000,000,000).

G. In the distribution procedure commenced under the Daejeon District Court Hongsung Branch 2008 Other 00 with respect to the deposit amount of KRW 410,849, and KRW 491, the execution court distributed each of the above KRW 205, 420, 216 to the Defendant, who is the person holding the provisional attachment right, and the Defendant, who is the person holding the collection right, 205, 420, 215 won (hereinafter referred to as “the second dividend”) on March 19, 200, without a dispute, 【the ground for recognition’s ground for recognition”; Gap’s evidence Nos. 1 through 5, 13, and Eul’s evidence Nos. 1 through 4 (including each number), the purport of the whole pleadings, and the purport of the whole pleadings.

2. The plaintiff's assertion

The defendant, despite being aware that Park○-○ would use the money borrowed from the defendant for the purpose of the provisional seizure of the plaintiff, lent money to Park○-○ two times over the same period. With regard to the right to claim collection of the deposit money in the above year, he obtained profits by unfairly receiving at least KRW 600,00,000 in total by receiving a seizure and collection order on two occasions, and thereby causing losses to the plaintiff from not recovering KRW 455,398,006 out of the claim against Park○-○-○, which caused losses to the plaintiff. The defendant is obligated to return the above KRW 455,398,006 to the original High Court for unjust enrichment.

Meanwhile, even though the Defendant had known that the loan was used as a deposit at the time of the first loan, at least at least at the time of the second loan, the Defendant was obliged to return the second dividend 205, 420, and 215, which was paid on the basis of the loan claim under the second loan, to the Plaintiff as unjust enrichment.

3. Determination

A. In light of the purport of the system of revoking the execution of provisional seizure by deposit of the amount of deposit of the amount of deposit of provisional seizure, the interests of the person holding the right to claim provisional seizure shall not be infringed by the revocation of provisional seizure execution. Thus, the person holding the right to claim provisional seizure shall not claim the effect of seizure or provisional seizure based on the above loans against the creditor holding the right to claim provisional seizure of the amount of deposit of provisional seizure even though the person holding the right to claim provisional seizure is a creditor against the debtor of provisional seizure, unless there are special circumstances (see Supreme Court Decision 97Da30820 delivered on June 26, 1998).

On the other hand, in case where a creditor who is liable to receive a distribution without receiving a distribution receives a distribution because it is not to confirm the right under the substantive law, and a creditor who is liable to receive a distribution receives a distribution without receiving a distribution, the creditor who did not receive the distribution has the right to claim the return of unjust profits against the person who received the distribution, regardless of whether he raised an objection to the distribution or whether the distribution procedure has become final and conclusive in the form (Supreme Court Decision 86Meu2949 delivered on November 8, 198).

Therefore, in light of the above legal principles, we examine whether the Defendant, even though being aware that the Defendant was to be used as the deposit money at the time of the first and second loans, lent money to Park ○-○ to cancel the execution of provisional seizure and unjust enrichment without any legal cause in relation to the Plaintiff.

B. Whether the defendant's unjust enrichment against the first dividend is unjust

In addition to the above ○○○○○○○○○○○○○○○○○○○○○○○○○○○○○’s loan, the Defendant received an order to collect the above amount of money by borrowing KRW 850,00 from the Defendant, and then received dividends from the Defendant at the time of ○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○. As seen earlier, the Defendant received the money from the Defendant to deposit the money for the purpose of ○○○○○○○○○○’s loan.

Unless there is evidence to prove that ○○ entered into a monetary loan loan contract with ○○ as an intentional agent, it cannot be deemed that ○○ was aware of the purpose of the above loan at the time of the first loan. 7 The piracy deposit is the object of execution when the creditor holding a final and conclusive judgment in favor of ○○ at the time of the first loan or a judgment of winning a provisional execution rendered in favor of ○○○ was rendered. As long as the winning of the principal lawsuit cannot be entered, it is impossible to collect it as long as the ordinary person cannot confirm the contents of the principal lawsuit and the progress of the lawsuit, etc., and it is difficult to understand that ○○ lending of large amount of money under the pretext of provisional seizure deposit without verifying the contents of the lawsuit on the merits and the progress of the lawsuit. In light of the facts acknowledged earlier, it is insufficient to find that the Defendant knew that the above loan was used as a deposit for the first loan at the time of the first loan, and there is no evidence to support the Plaintiff’s assertion that this part of the Plaintiff’s assertion is consistent with this Opinion.

C. Whether the defendant's unjust enrichment against the second dividend is unjust

According to the above evidence, at least 400,000,000 won was known at the time of the second loan to use for the purpose of the deposit money for the provisional seizure, the defendant can be found to have lent the loan due to the first loan at ○○○ at the request of ○○. The defendant's partial testimony of the witness Park ○○ is insufficient to reverse the fact of the above recognition, and there is no counter-proof, and thereafter ○○○ was decided to cancel the execution of provisional seizure by depositing the deposit money at KRW 400,000,000, and the defendant was subject to the seizure and collection order for the claim for the collection of deposit money for the above loan and received dividends in the dividend procedure. Thus, as seen earlier, the defendant has received dividends in the above facts.

In relation to the Plaintiff, a provisional attachment obligee, the effect of seizure cannot be asserted against the right to claim the recovery of the above amount of deposit. Accordingly, even though there is no right to receive the dividend based on the provisional attachment, gain profits equivalent to the second dividend without any legal ground, and thereby inflict losses on the Plaintiff, thereby preventing the Plaintiff from receiving the same amount of dividends. Thus, the Defendant is obligated to return the total amount of the second dividend to the Plaintiff as unjust enrichment. 4)

(d) Sub-committee;

Therefore, the Defendant is obligated to pay, as unjust enrichment, interest or delay damages calculated at the rate of 20% per annum under the Civil Act, which is stipulated in the Act on Special Cases concerning the Promotion, etc. of Legal Proceedings, from the next day to the day of full payment, to the date of receiving high-priced dividends on KRW 205, 420, 215, and the Plaintiff’s claim from March 20, 2008, that is, the Defendant’s claim as to the existence or scope of the obligation to pay to the Plaintiff as unjust enrichment.

4. Conclusion

Therefore, the plaintiff's claim is justified within the above scope of recognition, and the remaining claims are dismissed as they are not reasonable. It is so decided as per Disposition.

Judges' Association;

Judges Kim Jong-chul

Judges Lee Jin-hee

1) On the other hand, the plaintiff filed a lawsuit against Extraordinary on the merits of the above provisional seizure with the Seoul Central District Court 2007GahapO, and on June 10, 2008, sentenced on the purport that on the above court's June 10, 2008, Extraordinary shall pay to the plaintiff 779,850,000 won and 30% interest per annum from September 24, 2006 to the date of full payment. The above judgment became final and conclusive around that time.

2) On the other hand, at the time, Han-O knew that it is required to pay KRW 1,50,000,000 to the Defendant for an amount equivalent to KRW 850,000 with the amount deposited at sea, but it is necessary to conceal such fact at the time and to divorce with his wife, but Han-O is responsible for 1,100,000,000 with the loan after three months around, and paid KRW 1,100,000 from ParkO. As such, Han-O deceiving deceiving the Defendant as if it were to lend KRW 1,00,000 to ParkO, and then acquired KRW 150,000,000 with its difference.

3) On June 7, 2007, HanO stated that it did not go to the Defendant prior to the first loan, and that it was locked, and that it would be locked, the Defendant prevented the Defendant from having the opportunity to directly check the use, etc. of the loan in advance.

4) The Plaintiff received dividends of KRW 205,420,216 from the dividends as of March 19, 2008, out of KRW 410,849,49,491, and did not receive dividends equivalent to KRW 205,429,275, which is the difference. This is obvious in calculating the amount of the secondary dividends that the Defendant received at the time of the distribution. As such, the amount of unjust enrichment made by the Defendant against the Plaintiff is the total amount of the secondary dividends.