[1] In the event of an auction of a movable owned by a person other than the debtor, whether the creditor who received a dividend of the proceeds from the sale of the movable bears the obligation to return unjust enrichment to the former owner of the movable (affirmative)

[2] The purpose and effect of the bona fide acquisition of movable property

[3] In a case where a creditor who has sold a movable owned by a person other than the debtor sells it by auction and receives a dividend for the proceeds of sale concurrently holds the position of the bona fide acquisitor, whether the creditor may demand a refund of the movable itself instead of the dividend (negative)

[1] In the auction procedure where the movable properties owned by a person other than the debtor are sold at auction, and the successful bidder who received the auction price for the movable properties has paid the auction price for the movable properties in good faith, and even if the creditor received the auction price for the movable properties, he/she shall not be the debtor, so even if the creditor received the distribution, the creditor who received the distribution shall not lose his/her claim. Therefore, the creditor who received the distribution shall be deemed to have suffered the loss of ownership by the auction, and the owner of the movable properties may claim the return of the amount he/she received as unjust enrichment from the creditor who received the distribution, and this shall be deemed to have been the same if the creditor bona fide acquired the ownership of the machinery and apparatus, even if the machinery and apparatus owned by the third party was sold at auction together with the land or building belonging to the factory as set forth in the list of Article 7 of the Factory Mortgage Act without his/her consent, which is the object of the mortgage under Articles 4 and 5 of the Factory Mortgage Act.

[2] Since the bona fide acquisition of movable property under Article 249 of the Civil Act is a system established by the Act to recognize the acquisition of ownership by the trusted person by focusing on the non-right of the person who occupies the movable property and to prevent the trend of the genuine owner, the bona fide acquisition of the movable property by satisfying the requirements stipulated under the above Article is the right of the person who bona fide acquisition of the movable property, while the legal effect that would lose the ownership by the previous owner occurs under the provisions of the Act. Thus, the bona fide acquisitor cannot arbitrarily refuse such bona fide acquisition and demand the previous owner to return the movable property.

[3] In a case where a creditor who received a dividend of the proceeds from sale of a movable owned by a person other than the debtor concurrently holds the position of the bona fide acquisitor by auctioning the movable, the creditor who received a dividend shall not be a movable that acquired in good faith without any legal grounds. Thus, unless the former owner of the movable takes the return of the movable at his/her own discretion, it shall not be required to demand the return of the movable itself, and the dividend shall not be returned as unjust enrichment.

[1] Article 741 of the Civil Code, Articles 4, 5, and 7 of the Factory Mortgage Act / [2] Article 249 of the Civil Code / [3] Articles 249 and 741 of the Civil Code

[1] Supreme Court Decision 96Da51332 delivered on June 27, 1997 (Gong1997Ha, 2328), Supreme Court Decision 97Da32680 delivered on March 27, 1998 (Gong198Sang, 1175)

National Lease Co., Ltd. (Attorney Lee In-bok)

Industrial Bank of Korea (Attorney Kim Jong-chul, Counsel for defendant-appellant)

Daejeon High Court Decision 95Na4467 delivered on December 16, 1997

The appeal is dismissed. The costs of appeal are assessed against the defendant.

Defendant’s attorney’s grounds of appeal (to the extent of supplement in case of supplemental appellate briefs not timely filed) are examined as follows.

1. Examining the relevant evidence based on the records, the judgment of the court below is just in holding that the defendant who was awarded a successful bid of the machinery and apparatus of this case which is the object of factory mortgage in the auction procedure based on factory mortgage in the judgment below, and there is no error of law such as the theory of lawsuit.

2. In the case of an auction of movable properties owned by a person other than the debtor, if the successful bidder who received the auction price for the movable properties, pays the auction price for the movable properties in good faith, and the creditor who received the auction price for the movable properties, even if he received dividends, the claim shall continue to exist without extinguishing the claim. Therefore, the creditor who received dividends shall be deemed to have obtained profits without any legal cause, and the owner who received dividends shall be entitled to claim the return of the amount of money received as unjust enrichment from the creditor who has received the dividends. This is that the owner of the movable properties may claim for the return of the amount of money received as unjust enrichment from the creditor who acquired the dividends. Since the machinery and apparatus owned by a third party becomes the object of mortgage under Articles 4 and 5 of the Factory Mortgage Act without his consent and becomes the object of the mortgage under Article 7 of the same Act, the owner who acquired the movable properties at his own discretion is not entitled to obtain the ownership of the previous person who acquired the movable properties in good faith and thus, even if the creditor received the auction price for the machinery and apparatus, etc.

In the case of this case, although the defendant concurrently holds the position of the person who acquired the machinery of this case in good faith and the status of the creditor who received dividends from the auction proceeds of the machinery of this case, it is not movable property that the defendant acquired profits without any legal cause in this case, and therefore, the defendant cannot demand the plaintiff to return the machinery of this case to the plaintiff, unless the plaintiff received at will a return of the machinery of this case, and it is inevitable to return the dividends in unjust enrichment.

We cannot accept the allegation in the grounds of appeal that criticizes the judgment of the court below under different views.

3. Examining the records, since the plaintiff's KRW 46,00,000 that was paid as the price for the instant machinery by the non-party Acheon Chemical Industry Co., Ltd. shall be deemed to be merely the amount of money in the nature of settlement between the plaintiff and the non-party company, the judgment of the court below which rejected the defendant's assertion that the above purchase price should be deducted from the unjust enrichment to be returned by the defendant is just and there is no error of law such as the theory of lawsuit.

4. All arguments are without merit, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Shin Sung-sung (Presiding Justice)