2011Na26962 Undue gains

K. K.

Youngcheon-gu, Kucheon-gu

N Corporation

Gyeongbuk-gu Office of Education

Daegu District Court Decision 2011Da34795 Decided December 8, 2011

October 26, 2012

November 23, 2012

1. The defendant's appeal is dismissed.

2. The costs of appeal are assessed against the defendant.

1. Purport of claim

The defendant 32,486,00 won and its duplicate from August 15, 2010 to the plaintiff

Until service date, 5% per annum and 20% per annum from the next day to the day of complete payment.

L. D. Payment of money.

2. Purport of appeal

The judgment of the first instance is revoked. The plaintiff's claim is dismissed.

1. Basic facts

The reason why the trial in this part is to be explained is that the witness “B” is the same as the corresponding part of the judgment in the first instance except that the witness “B” in the second part of the judgment in the first instance.

2. The assertion and judgment

A. The parties' assertion

The reason why the trial in this part is stated is the same as that of the corresponding part of the judgment of the court of first instance.

B. Determination: (1) Determination on the scope of validity of the Plaintiff’s transfer security right

The reasoning for the judgment of the court of first instance is as follows: "In addition, the defendant disposed of the crub of transfer to the plaintiff, and maintained the crub of this case in fact for several months due to the crub of transfer to the plaintiff." However, according to the records of evidence No. 6 and the fact-finding with the Daegu District Court of the first instance on Jan. 30, 207, the plaintiff continued to sell the crub of transfer to the crub of this case as 22,00,000,000,000 won, and the crub of transfer to the plaintiff's crub of transfer to the crub of this case and the crub of this case's crub of transfer to the crub of this case's crub of transfer to the plaintiff's crub of transfer to the crub of this case's crub of transfer to the plaintiff's crub of transfer to the plaintiff.

On the other hand, Supreme Court Decision 2004Da22858 Decided November 12, 2004 cited by the defendant, in a case where pigs raised in a large quantity are the object of the security for distribution of aggregate goods, the effect of the security for transfer is that the effect of the security for transfer does not extend to the pigs which the transferee of the pigs invested and carried in separate funds from the person who established the security for transfer, and the effect of the security for transfer does not extend to the pigs brought in by the person who established the security for transfer. This case is not applicable to the case in which A carried in the goods. (2) The illegality of the disposition of this case, and the occurrence of the plaintiff's damage therefrom.

In the event that a double transfer is established by the method of occupation and alteration of movable property, the original mortgagee may claim his exclusive security right against the subsequent mortgagee. Thus, the act that the subsequent mortgagee is unable to exercise his own security right by disposing of the object of transfer security is an unlawful act that infringes on the original mortgagee’s right to transfer security, regardless of whether the establishment of double transfer security constitutes embezzlement or breach of trust, or whether the subsequent mortgagee actively participated in the establishment of double transfer security (see Supreme Court Decision 9Da6506 delivered on June 23, 2000). The effect of the Plaintiff’s right to transfer security in this case is as follows: (a) in the instant case, the senior mortgagee may claim his exclusive security right against the subsequent mortgagee; (b) in the event of the establishment of double transfer security by the method of occupation and alteration of movable property, the defendant, who is the subsequent mortgagee, sold the above junior mortgagee’s right to transfer security to the Plaintiff by selling it to 300 won and return it to 2086 won to the Plaintiff without reasonable cause.

On the other hand, as the plaintiff permitted the disposition of this case to the defendant, the defendant's disposal of this case's chickens cannot be deemed to be unjust enrichment without any legal ground. The proceeds from sale of this case's chickens shall not be deemed to have been unjust enrichment since it is in custody of the defendant, not the defendant. However, according to the above facts of recognition, the defendant's employee prevented the defendant from selling this case's chickens. After the plaintiff's director, the plaintiff filed a lawsuit claiming the return of unjust enrichment against the defendant, and it is only acknowledged that the plaintiff agreed to receive the return of the proceeds if the plaintiff won the plaintiff, and it cannot be deemed that the plaintiff allowed the disposition of this case's chickens, and there is no other evidence to acknowledge it, and according to the evidence No. 4, the defendant's assertion that the defendant acquired the proceeds from sale of this case's chickens and entrusted its custody to the defendant. Thus, the above argument of the defendant is without merit.

Therefore, the Defendant is obligated to pay to the Plaintiff the amount of unjust enrichment of KRW 32,486,00 and damages for delay calculated at the rate of 5% per annum as stipulated in the Civil Act from August 15, 2010 to June 1, 201, the delivery date of a copy of the complaint of this case, and 20% per annum as stipulated in the Act on Special Cases concerning Expedition, etc. of Legal Proceedings from the next day to the date of full payment.

3. Conclusion

Therefore, the plaintiff's claim of this case is justified, and the judgment of the court of first instance is just, and the defendant's appeal is dismissed as it is without merit. It is so decided as per Disposition.

Judges of the presiding judge;

Judge Seo-soo

Judges Kim Gin-han