Yellow School Housing Development Cooperatives (Attorney Go Young-gu, Counsel for the plaintiff-appellant)

Defendant 1 and two others (Law Firm D.L.S., Attorney Lee Sang-hoon et al., Counsel for the defendant-appellant)

March 28, 2007

1. The Plaintiff:

A. Defendant 2: 5% per annum from April 14, 2004 to April 11, 2007; and 20% per annum from the following day to the date of full payment; and

B. The defendant Industrial Bank of Korea shall pay 459,615,519 won, and 5% interest per annum from May 24, 2006 to April 11, 2007, and 20% interest per annum from the next day to the date of full payment;

sub-payment.

2. The plaintiff's claim against the defendant 1 and the remaining claims against the defendant 2 and the Industrial Bank of Korea are dismissed, respectively.

3. The part arising between the Plaintiff and Defendant 1 shall be borne by the Plaintiff, Defendant 2, and the Industrial Bank of Korea respectively.

4. Paragraph 1 can be provisionally executed.

As for the Plaintiff, Defendant 1 and Defendant 2, jointly and severally, KRW 166,44,546 and its 5% per annum from April 14, 2004 to the delivery date of a copy of the complaint of this case, KRW 20% per annum from the next day to the day of complete payment, and KRW 459,615,519 to the Industrial Bank of Korea, KRW 400,000 from June 20, 2003, KRW 59,615,519 from the next day to the delivery date of a copy of the complaint of this case, and KRW 20% per annum from the next day to the day of full payment.

1. Facts of recognition;

The following facts are not disputed between the parties, or may be acknowledged by comprehensively taking into account the following facts: Gap evidence 1-2, Eul evidence 1-2, Eul evidence 2-3, Gap evidence 4, Gap evidence 5-1 through 4, Gap evidence 6, Gap evidence 7-1, 2, Gap 8-1, Eul evidence 1-2, Eul evidence 2-2, Eul evidence 3, Eul evidence 2-2, Eul evidence 2-3, Eul evidence 4, Eul evidence 5-1 through 6, Eul evidence 7-1, Eul evidence 7-2, Eul evidence 8-1, Eul evidence 1-2, Eul evidence 1-2, Eul evidence 2-2, Eul evidence 2-3, Eul evidence 4, and Eul evidence 5.

A. Defendant 2 and the Nonparty purchased each real estate listed in the separate sheet, and completed the registration of ownership transfer on June 16, 1996, with 1/2 shares of each of the above real estate. Defendant 2 sold the above co-ownership share (hereinafter “instant real estate”) to Defendant 1, and completed the registration of ownership transfer on January 22, 2002.

B. The plaintiff agreed on the compensation for each real estate stated in the separate sheet included in the redevelopment project, but as a result, he did not reach an agreement, the local Land Tribunal of Seoul Special Metropolitan City applied for the adjudication of expropriation. On February 16, 2002, the local Land Tribunal of Seoul Special Metropolitan City deposited each real estate listed in the separate sheet with the amount of KRW 1,252,120,130 on March 20, 2002, including the total amount of KRW 935,909,100, and building compensation KRW 316,211,030 on March 20, 202, and the plaintiff deposited the amount of KRW 626,060,065, which is the compensation for expropriation of the real estate of this case (hereinafter "the first deposit of this case").

C. After a public announcement of project approval on April 20, 202, the local Land Tribunal rendered a ruling of expropriation by Defendant 2 with Defendant 1, without knowing it, even though the owner of the instant real estate had been changed from Defendant 2 to Defendant 1 before the expropriation was made, and on the ground that it was changed to Defendant 2 to Defendant 1, the local Land Tribunal rendered a ruling of correcting the owner of the instant real estate from Defendant 2 to Defendant 1. After that, the Plaintiff completed the registration of transfer of ownership on April 25, 2002 as the receipt of No. 2420 of April 25, 2002 as to each of the instant real estate listed in the separate sheet, and the Central Land Tribunal rendered a ruling of objection to increase the compensation for the building among the instant real estate on October 22, 2002.

D. With respect to each real estate listed in the separate list at the time of the above expropriation, the Industrial Bank of Korea established by Defendant 2 (hereinafter “Defendant Bank”) was established by a majority of the establishment registration of the neighboring mortgage holders. However, on April 11, 2002, the Defendant Bank, each of the above collective security holders, designated Defendant 2 as the debtor on April 1, 2002, received a claim seizure and assignment order based on subrogation right (Seoul District Court 2002TTTTT2101), and distributed KRW 40 million out of the above deposit money on June 20, 203, and Defendant 2 paid KRW 16,44,546 out of the above deposit money to Defendant 1 through his agent on April 14, 2004, and the Defendant Bank received the above claim for collection of KRW 16,54,546 from the Seoul District Court on March 23, 2003, and the above claim for collection of KRW 2051,2546,2946.

E. However, Defendant 1 filed a lawsuit with the Seoul Administrative Court seeking confirmation of invalidity, etc. of the above objection to the Seoul Administrative Court. On November 3, 2004, Defendant 1 deposited the real estate owner at the time of expropriation as a deposit in the case of depositing the compensation for expropriation. Thus, if Defendant 1, the owner of the real estate at the time of expropriation, but Defendant 2, the former owner, not the owner of the expropriation, deposited the compensation as a deposit, if he deposited the compensation with Defendant 2, not the owner of the expropriation, the above expropriation ruling on the real estate at the time of expropriation was null and void due to the lack of effective deposit until the time of expropriation, and on the premise that the above adjudication on expropriation becomes null and void. The above ruling was finalized on November 30, 204, and the above ruling became final and conclusive as of November 30, 2004.

F. According to the above judgment, the above transfer registration of ownership in Defendant 1 and the establishment registration of each of the above units was restored. On May 21, 2005, the local Land Tribunal of Seoul Special Metropolitan City deposited KRW 76,150,800 (hereinafter “the second deposit in this case”) with the deposited person as Defendant 1 on July 8, 2005, with the land compensation of KRW 632,454,00 on July 9, 2005, and the building compensation of KRW 13,696,80 on July 9, 2005.

2. Determination:

A. According to the above facts, the first deposit of this case, which was made by Defendant 2, who is not the owner of the real estate in this case, as the owner of the real estate in this case, did not have the right to claim the withdrawal of the first deposit, and the plaintiff can recover the said deposit. Thus, the withdrawal of the first deposit by Defendant 2 and the defendant bank in this case was made without any legal ground, and therefore, unless there are special circumstances to the plaintiff, the defendant 2 is liable to return the amount of KRW 16,44,546 and the defendant bank to the unjust enrichment.

The Plaintiff also asserts that Defendant 1 is jointly and severally liable to return KRW 166,44,546 to Defendant 2. However, Defendant 2 granted the authority to withdraw the above deposit to Defendant 1, and Defendant 1 paid it to Defendant 2’s agent, as seen above, the effect of the above deposit payment belongs to only Defendant 2. Thus, the Plaintiff’s above assertion is without merit.

B. Determination as to Defendant 2’s assertion

Defendant 2 delegated his authority to withdraw the instant primary deposit at Defendant 1’s request, which is the actual owner of the instant real estate, so that the said Defendant may withdraw the instant primary deposit, and as such, the actual deposit belongs to Defendant 1, the Plaintiff cannot seek a return of unjust enrichment against Defendant 2. However, as seen above, as long as Defendant 2 granted the authority to withdraw the said deposit to Defendant 1, the effect of the receipt of the said deposit shall belong to Defendant 2, regardless of whether the said deposit actually reverts to the actual owner of the instant real estate, so the said assertion is without merit.

C. Determination on the assertion of Defendant Bank

The Defendant Bank deposited the expropriation compensation with Defendant 2, the former owner, who knew or could have known that the instant real estate was Defendant 1’s ownership. Accordingly, the Defendant Bank believed that the instant first deposit was effective, and appropriated the amount of KRW 400 million out of the instant first deposit, by exercising the right of subrogation as a mortgagee of the instant real estate, to pay the debt. In the event the Plaintiff again made the instant second deposit with Defendant 1 on the ground that the said first deposit was erroneous designation and invalid, the Defendant Bank should notify the Defendant Bank of this fact, thereby allowing the Defendant Bank to exercise the right of subrogation. However, Defendant 1 deposited the instant second deposit without notifying it, thereby allowing the Defendant Bank to receive all the instant second deposit money, and thereby, the Defendant Bank lost the opportunity to exercise the right of subrogation for the instant second deposit payment claim, and thus, the Plaintiff asserts that the said Defendant Bank had the obligation of offsetting the amount to be paid by the said Defendant to the said Defendant bank within the scope of set off the amount of unjust enrichment.

On the other hand, if the defendant bank becomes unable to exercise the subrogation right for the second deposit of this case due to the plaintiff's cause attributable to the plaintiff, the plaintiff is obligated to compensate for the damages arising therefrom. However, there is no evidence to prove that the defendant bank was unable to exercise the subrogation right for the second deposit of this case. Thus, the above assertion is without merit without further determination.

3. Conclusion

Therefore, as unjust enrichment to the Plaintiff, Defendant 2 is obligated to pay 5% per annum under the Civil Act from April 14, 2004 to April 11, 2007, the payment date of the above deposit, and 20% per annum under the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings from the next day to the day of full payment. Defendant Bank is 459,615,519 won, and the above Defendant bank is considered to be a malicious beneficiary from May 24, 2006 to April 11, 2007, the delivery date of the complaint of this case, which is 459,615,519 won, and the above Defendant's claim against Defendant 2 is dismissed as it is without merit. It is so decided that the Plaintiff's claim against the Defendant 2 and the Industrial Bank of Korea is without merit.

[Attachment List omitted]

Judges Kim Jong-soo (Presiding Judge)