[1] In a case where a creditor who demands a distribution under Article 605(1) of the Civil Procedure Act has a right to demand a distribution, but has failed to make a lawful demand for a distribution under substantive law, whether it is excluded from the distribution (affirmative)

[2] In a case where the registration of seizure due to the disposition on default was completed prior to the registration of the commencement of auction on real estate before the date of commencement of auction, whether a tax claimant may make a request for the revised delivery after the successful bid date (affirmative), and the scope of the claims entitled

[3] Court's explanation and cadastral duty as to legal matters

[4] The case reversing the court below's decision on the ground that the party did not exercise the right of explanation properly and did not provide the party with an opportunity to state his opinion on legal matters

[1] The creditor demanding a distribution under Article 605 (1) which is applied mutatis mutandis under Article 728 of the Civil Procedure Act may receive the distribution only by the time of the successful bid, and in the case of failure to make a lawful demand for distribution, even if the creditor has the right to demand a preferential reimbursement under the substantive law, he shall not receive the distribution from the successful bid price.

[2] In case where the registration of seizure by a disposition on default has been completed prior to the registration of commencement of auction on real estate prior to the registration of entry into a successful bid date, even if the State does not make a request for delivery under Article 56 of the National Tax Collection Act, it becomes effective as a matter of course with the registration of distribution under the Civil Procedure Act. In this case, if the State fails to submit evidential documents by the successful bid date, the court of auction will investigate and distribute the delinquent tax amount pursuant to the relevant request for the registration of seizure. In such a case, even if there was a report on delinquent tax amount prior to the successful bid date, the State may again submit the corrected evidentiary documents, etc. until the distribution schedule is prepared, and the auction court shall calculate the delinquent tax amount to be paid by the State according to the documents and evidence, etc. submitted until the preparation of the distribution schedule at the time of preparation of the above successful bid

[3] In a case where there is a clear and excessive legal matter due to negligence or misunderstanding by a party’s assertion from a legal point of view, the court shall actively exercise the right of explanation and give the party an opportunity to state his/her opinion. If a trial based on a legal point of view where the party was unable to expect at all, and thereby a party’s sacrificings to one party, the court’s failure to perform its duty of explanation or misunderstanding is unlawful.

[4] The case reversing the judgment below which dismissed the claim of the taxation right holder on the ground that the taxation right holder did not exercise the right of explanation and did not provide the parties with an opportunity to state their opinions on the legal matters, on the ground that the dividend against the taxation right holder was deposited in the auction application due to the objection of the taxation right holder, and that the taxation right holder failed to pay the amount equivalent to the dividend in return of unjust enrichment against the auction

[1] Articles 605(1) and 728 of the Civil Procedure Act, Article 741 of the Civil Act / [2] Articles 587(2), 653, and 728 of the Civil Procedure Act / [3] Article 126 of the Civil Procedure Act / [4] Article 126 of the Civil Procedure Act, Article 741 of the Civil Act

[1] Supreme Court Decision 95Da28304 delivered on December 20, 1996 (Gong1997Sang, 342), Supreme Court Decision 96Da10263 delivered on February 25, 1997 (Gong1997Sang, 865), Supreme Court Decision 98Da12379 delivered on October 13, 1998 (Gong1998Ha, 260) / [2] Supreme Court Decision 96Da51585 delivered on February 14, 199 (Gong197Sang, 769), Supreme Court Decision 98Da21946 delivered on January 26, 199 (Gong199, 349Sang, 209Da90909 delivered on September 29, 2009)

Korea

Defendant

Seoul District Court Decision 2000Na51833 delivered on January 12, 2001

The judgment of the court below is reversed, and the case is remanded to the Seoul District Court Panel Division.

1. Summary of the judgment of the court below

A. Comprehensively taking account of all the evidence, the court below acknowledged that the defendant completed the registration of seizure of the forest of this case on March 10, 1997 as the 32899 with respect to the forest of this case owned by the non-party, and on the other hand, the plaintiff applied for an auction of this case on July 12 of the same year to the non-party global income tax of KRW 94,824,790 (36,450,90 among them) on the 36th day of January 1996; the remaining 58,373,800 won was the 97th day of January 16, 1996; the remaining 97th day of March 16, 199; the defendant applied for an auction of this case on the 197th day of November 13, 1998, and the remaining amount of the auction of this case was issued by the 97th day of September 16, 1997.

B. On the ground that the statutory date of KRW 84,757,290, out of the amount of the plaintiff's claim for delivery corrected as of December 11, 1999, was more than that of the defendant's establishment registration, the court below held that the amount of KRW 45,00,00 distributed by the defendant should be returned to the plaintiff as unjust enrichment. On the ground that the plaintiff's claim that the amount of KRW 96,450,90, out of the non-party's delinquent tax amount of KRW 94,824,790, the non-party's claim for distribution was completed on July 12, 1997, 197, 36,450, 90, which was 96, which was the first 96, 196, 58,373,800, which was more than that of the non-party's claim for delivery of dividends at the 909,000,000 won was more than that of the first auction date.

2. The judgment of this Court

A. The execution of a distribution schedule pursuant to the final and conclusive distribution schedule is not to confirm the substantive right, and in case where a person who fails to receive a distribution receives a distribution without receiving a distribution, the preferential creditor who has not received the distribution shall be deemed to have the right to claim the return of unjust enrichment against the person who received the distribution. However, in case where a person who requests a distribution under Article 605(1) which is applicable mutatis mutandis under Article 728 of the Civil Procedure Act makes a demand for distribution by the successful bid date, he may receive the distribution only if he makes a demand for distribution by the successful bid date, and in case where he does not make a legitimate demand for distribution, even if he has the right to claim a preferential payment under the substantive law, he shall not receive the distribution from the successful bid price (see Supreme Court Decision 98Da12379, Oct. 13, 1998). However, in case where the seizure registration by delinquent disposition on real estate was completed before the final and conclusive date for the commencement of the sale order, the State shall, as a matter of course, submit a report on the amount of distribution under Article 96.

The court below's determination is based on such legal principles. The auction court of this case's distribution of only KRW 26,455,990 on the basis of the request for delivery prior to the successful bid date is unfair, but in excess of this, the amount to be preferentially distributed to the plaintiff shall be limited to KRW 9,95,00,000 within the difference within the scope of the claims under the registration of seizure, and it is justifiable to reject the plaintiff's assertion as to priority distribution above that amount. There is no illegality as argued in the

B. However, even if the court below acknowledged that the above difference 9,95,000 won should be distributed to the plaintiff among the amount distributed to the defendant, it is hard to accept the plaintiff's claim for return of unjust enrichment on this part for the following reasons.

In a case where a false party’s fault or misunderstanding is clearly excessive, or where a party’s assertion is not clear or incomplete or contradictory from a legal point of view, the court shall actively exercise its right of explanation and give the party an opportunity to state his/her opinion. If a trial based on a legal point of view where the party was unable to expect at all, and the party’s failure to perform his/her duty of explanation or her intellectual duty is unlawful.

According to the facts and records established by the court below, the plaintiff's delinquent national tax claims priority over the defendant's secured debt based on the right to collateral security, which the plaintiff received dividends from the defendant, and claimed the return of the amount equivalent to the above dividend amount in the claim that the defendant received unjust enrichment equivalent to the above dividend amount. The plaintiff's dividends were reserved due to the plaintiff's distribution, deposited the dividends, and the defendant has not yet received the dividends. However, on the other hand, if the plaintiff filed a lawsuit of demurrer against distribution and maintained the dividends, at least the part of the above difference was winning, and the plaintiff received additional dividends in accordance with the judgment of winning the lawsuit, and the purpose of the lawsuit was achieved simply by receiving additional dividends. Although there were no special circumstances that could interfere with the progress of the lawsuit of demurrer against distribution, the court of first instance adopted a method of remedy by changing the lawsuit of demurrer against distribution to the lawsuit of claiming the return of unjust enrichment, and since the defendant received dividends, the plaintiff claimed the return of the dividends equivalent to the dividends in the claim against the auction court, and the plaintiff did not receive the dividends at the date of pleading.

As such, the Plaintiff asserted the purport of the claim that is inconsistent or inconsistent with the cause of the claim, while the Plaintiff was bound to distribute dividends to the Defendant due to his/her objection to distribution, and the Defendant sought the return of the amount equivalent to the dividend even though he/she did not receive the dividend, and thus, it cannot be said that the Plaintiff does not clearly understand the legal relationship or effect of the return of unjust enrichment in accordance with the reservation for distribution, or that the assertion is a case of uncertainty, incomplete or contradictory from a legal point of view.

However, in the first instance trial, only the Plaintiff’s national tax claim takes precedence over the Defendant’s secured claim based on the right to collateral security and whether the Plaintiff’s claim for the increase in the amount was legitimate, and there was no specific argument in the lower trial as to the legal matters that are the Defendant’s unjust enrichment acquired by the Defendant and whether the Plaintiff can immediately seek the return of the amount equivalent to the dividend, or that the Plaintiff should seek the return of the dividend payment claim.

In light of these circumstances, the dispute in this case was derived from the point that who is obligated to receive the above dividends, and the appropriate and detailed method in resolving the dispute is a lawsuit of demurrer against distribution. The plaintiff also filed a lawsuit of demurrer against distribution, and the plaintiff changed it to the lawsuit of claim for return of unjust enrichment, which is inconsistent with the cause of the claim, and it is apparent that this is attributable to the plaintiff's misunderstanding the legal relationship or effect of return of unjust enrichment in accordance with the reservation for distribution. Thus, the court below should not dismiss the plaintiff's claim in a case where the court below should consider the plaintiff's right of explanation and give an opportunity to correct the plaintiff's claim as a legitimate claim by exercising the right of explanation and give an opportunity to correct the plaintiff's claim in a legal manner. In order to dismiss the plaintiff's claim on the ground that the plaintiff's claim for the return of the money was erroneous, it should be ordered that the plaintiff seek the return of the money, and furthermore, if the defendant received the dividend before the receipt of the dividend, it should also be ordered

Nevertheless, the court below's dismissal of the plaintiff's claim on the ground that the defendant cannot be deemed as unjust enrichment of a considerable amount of money in the dividend itself, is erroneous in not exercising the right of explanation properly but giving the parties an opportunity to state their opinions on legal matters, and it has affected the conclusion of the judgment.

3. Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Ji-dam (Presiding Justice)