Whether an execution creditor can be deemed to have made unjust enrichment solely on the fact that an assignment order was issued without a seizure claim

Even if an execution creditor received the entire claim from a third party obligor in excess of the actual claim amount, it cannot be deemed that the unjust enrichment was made from the total claim amount in excess, even though the third party obligor is obligated to return the entire claim amount to the obligor unless he/she has been reimbursed the amount equivalent to the whole claim amount.

Articles 563 and 564 of the Civil Procedure Act, Article 741 of the Civil Act

Gangwon-gu

Gu's letter

Seoul Central District Court (77Gahap3466) in the first instance trial

The appeal is dismissed.

Expenses for appeal shall be borne by the plaintiff.

The original judgment shall be revoked.

The defendant shall pay to the plaintiff 19,500,000 won with an annual interest rate of 5 percent from March 30, 1977 to the full payment.

The judgment of both the first and second courts that the costs of lawsuit shall be borne by the defendant and a declaration of provisional execution.

On the basis of the name of debt amount of KRW 50,00,000 against the non-party Young Construction Co., Ltd. (hereinafter referred to as the "non-party company"), the defendant received KRW 50,00,000 from the non-party company as a bond seizure and assignment order on January 28, 197 with the Seoul District Court 7Ta414,415, and the non-party company received the total amount of KRW 50,00,000 from the bonds held by the non-party company against the non-party company, regardless of the form of debt holder's debt title's face value in the above form, the actual claim amount of the non-party company was KRW 28,10,00,000 (the plaintiff was in the first instance trial and the actual claim amount was KRW 27,00,000,000, and there is no other evidence to support that some of the plaintiff's debt amount was a total sum of KRW 27,000,000,00 from the above parties.

First of all, the plaintiff asserts that the defendant was liable to return the unjust enrichment amounting to KRW 21,90,000 against the non-party company in excess of the above claim amounting to KRW 28,100,000 against the non-party company in excess of the above claim amounting to KRW 50,000 against the non-party company. However, the plaintiff is liable to pay KRW 19,50,000 to the non-party company as the third debtor on March 29, 197 due to a compulsory execution based on an executory exemplification of the judgment claiming the check amount amounting to KRW 77,100,100 against the non-party company on March 29, 197 due to a compulsory execution based on an executory copy of the judgment claiming the above unjust enrichment return claim against the defendant, the above claim amounting to KRW 19,500,000 against the non-party company, and the above seizure and assignment order was delivered to the defendant as the third debtor on that time.

Therefore, under the premise that the non-party company has a claim for return of unjust enrichment of not less than KRW 21,900,000 against the defendant, the defendant is also the person who received the attachment and assignment order of the above claim for return of unjust enrichment of the amount of KRW 19,50,000 among the above claim for return of unjust enrichment of the non-party company by compulsory execution based on the name of debt against the non-party company, as alleged by the defendant.

However, as seen earlier, even if the Defendant received the entire claim against the Republic of Korea from the non-party company for a third party obligor in excess of the actual claim amount, the Plaintiff’s claim for restitution of unjust enrichment amounting to KRW 19,500,000 against the Defendant is groundless on the premise that the non-party company received the entire claim amount from the non-party company, on the ground that there is no clear assertion and proof as to the fact that the entire claim amount in excess was already received from the above third party obligor, and that the entire claim amount in excess was returned to the same non-party company again. Therefore, it cannot be deemed that the above court’s claim for restitution of unjust enrichment amounting to KRW 21,90,000 from the non-party company, premised on the fact that the non-party company has a claim for restitution of unjust enrichment amounting to KRW 21,90,000,000 or more to the Defendant.

In addition, even though the non-party company did not have the right to claim the return of unjust enrichment that would be the entire claim in this case against the defendant, the part of the above construction loan amounting to KRW 19,500,00,000, which was over the defendant under the above seizure and assignment order obtained by the plaintiff, shall be again transferred to the plaintiff. Thus, in accordance with the principle of trust and good faith, the defendant should have received from the non-party Republic of Korea the full claim amount of KRW 50,500,000 from the non-party and returned KRW 19,50,000,000 from the part of the above assignment claim, which was over 21,90,000, which was over 19,500,000, which was over 19,500,000, which was over the whole claim in this case, after being served with the above seizure order for the plaintiff, and thus, the plaintiff shall be liable for damages equivalent to the above seizure claim suffered by the plaintiff.

However, in accordance with the seizure and assignment order as seen earlier, even if the Plaintiff seized the right to claim a return of KRW 19,500,000 out of the construction bond amounting to KRW 21,900,00,000, which was in full over the original Defendant from the non-party company pursuant to the Seoul Special District Court 77Ta1405,1406 and assignment order, it cannot be said that the Defendant is obligated to collect and pay KRW 19,50,000 out of the total bond amount above the Plaintiff on behalf of the Plaintiff under the principle of trust and good faith, and the Defendant did not receive the remainder after the Defendant claimed only the amount equivalent to the actual bond against the non-party company out of the total bond amount above the Plaintiff’s construction bond amount and did not receive the remainder ( there is no evidence to acknowledge that the Defendant exempted it against the Republic of Korea). Accordingly, the Plaintiff’s assertion on the premise that the Defendant interfered with the execution of the above seizure claim is without merit.

If so, the plaintiff's claim of the principal lawsuit shall be dismissed because it goes back to what kind of mother and without merit. Since the original judgment in this conclusion is justifiable, the plaintiff's appeal is dismissed, and the costs of appeal shall be borne by the losing party and it is so decided as per Disposition.

Judges Osungsung(Presiding Judge)