[1] In a case where the mortgagee has not exercised the right to exercise the subrogation right and the mortgagee has not exercised the subrogation right, whether the mortgagee may claim a return of unjust enrichment against other creditors who acquired the benefit (negative)

[2] In a case where a claim secured by a mortgage was not exercised the subrogation right on money which is the modified object of the mortgaged object, whether such claim can be deemed as a "claim secured by a mortgage on an attached property" under Article 81 (1) 3 of the National Tax Collection Act (negative)

[1] The proviso of Article 370 and Article 342 of the Civil Act provides that a mortgagee shall seize money or other things to be paid or delivered by the mortgagee in order to exercise the right of subrogation shall maintain the specificity of the claim which is the object of subrogation and preserve its validity, and at the same time not to inflict any damage on the third party. Therefore, as long as money or other things which are modified objects of mortgage have already been seized by a third party and have already been specified, the mortgagee may exercise his/her right of subrogation and obtain preferential reimbursement to the general creditor even if he/she did not seize them. However, the method of exercising the right of subrogation shall be submitted to the court of execution to submit documents proving the existence of the right of subrogation in accordance with Article 273 of the Civil Execution Act and submit them to the court of execution, or demand a distribution pursuant to Article 247(1) of the Civil Execution Act. Thus, it is impossible to obtain a preferential reimbursement from the compensation even if the mortgagee has not exercised the right of subrogation.

[2] Considering the purport of limiting the method and time limit of exercise of rights as a subrogation right is to maintain the specificity of the claim which is the object of subrogation and preserve its validity, and not to inflict losses on the third party, the claim secured by mortgage cannot be deemed as a "claim secured by mortgage on the seized property" under Article 81 (1) 3 of the National Tax Collection Act, unless the claim was secured by mortgage but did not proceed to exercise the subrogation right on the money which is the modified object of the mortgaged object.

[1] Articles 342, 370, and 741 of the Civil Act; Articles 247(1) and 273 of the Civil Execution Act / [2] Articles 342 and 370 of the Civil Act; Articles 80(1) and 81(1) of the National Tax Collection Act

[1] Supreme Court Decision 94Da25728 delivered on November 22, 1994 (Gong1995Sang, 71) Supreme Court Decision 98Da12812 delivered on September 22, 1998 (Gong1998Ha, 2552) Supreme Court Decision 2002Da33137 delivered on October 11, 2002 (Gong2002Ha, 2704)

Plaintiff

Korea

Daegu District Court Decision 2010Na2037 Decided May 27, 2010

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

The grounds of appeal are examined.

1. Regarding ground of appeal No. 1

Article 370 of the Civil Act and the proviso of Article 342 of the Civil Act stipulate that a mortgagee shall attach money or other things to be paid or delivered by the mortgagee in order to exercise the subrogation right shall maintain the specificity of the claim which is the object of subrogation, preserve its validity, and at the same time refrain from causing any loss to the third party. Therefore, as long as money or other things which are modified objects of mortgage have already been seized by a third party and the money or things have been specified, the mortgagee may exercise the subrogation right and obtain preferential repayment from the general creditor without attaching it by himself. However, the method of exercising the right of subrogation may not obtain preferential reimbursement from the compensation (see, e.g., Supreme Court Decision 200Da27318, Sept. 28, 1998; 200Da1847, Sept. 28, 1998).

According to the reasoning of the judgment below, after compiling the adopted evidence, the court below found facts as stated in its decision, and determined that the non-party's right to claim for the payment of land expropriation compensation, which is a modified object of the mortgaged object, by accepting the instant real estate which is the mortgaged object, was the object of subrogation. However, prior to exercising the subrogation right by the plaintiff, who is a collateral security right, the plaintiff's right to claim the payment of land expropriation compensation under Article 41 of the National Tax Collection Act, the non-party's right to claim the payment of land expropriation compensation under Article 41 of the National Tax Collection Act was seized by the head of Seogu Tax Office under the defendant's jurisdiction, and the plaintiff lost the right to preferential payment, so long as the plaintiff was subjected to the land expropriation compensation from the Korea Land Corporation due to the qualification of the collection right holder,

In light of the above legal principles and the records, such determination by the court below is justifiable. In so doing, there is no error of law by misapprehending the legal principles as to the subrogation of mortgagee and the elements for establishing unjust enrichment.

2. Regarding ground of appeal No. 2

According to Articles 80(1) and 81(1) of the National Tax Collection Act related to liquidation conducted as part of the procedure for disposition on default under the National Tax Collection Act, the money received from the delinquent taxpayer or the third obligor due to the attachment of bonds, securities, intangible property rights, etc., and the deposit interest on the proceeds from the sale of the attached property and the deposit interest on the proceeds therefrom shall be allocated to the following national taxes, surcharges, expenses for disposition on default, local taxes, or public charges related to the attachment, and the national taxes, surcharges, expenses for disposition on default, local taxes, or public charges that have been requested for delivery under subparagraph 1 of Article 11 of the National Tax Collection Act are stipulated in subparagraph 2 of the same Article and subparagraph 3 of the same

However, considering the fact that the purpose of limiting the method and time limit of exercise of rights as a subrogation right is to maintain the specificity of the claim which is the object of subrogation and preserve its validity, and not to inflict any loss on a third party, it cannot be deemed as a "claim secured by a mortgage on an attached property" under Article 81 (1) 3 of the National Tax Collection Act, unless the claim was secured by a mortgage, but is not going further to exercise the subrogation right on the money which is a modified object of the mortgaged object.

In light of the above legal principles and records, although the judgment of the court below was partially inappropriate at the time of the reasoning, the judgment of the court below to the same purport is just and acceptable. In so doing, there are no errors in the misapprehension of legal principles as to the interpretation of Article 81 (1) of the National Tax Collection Act

3. Conclusion

Therefore, the appeal is dismissed, 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.

Justices Min Il-young (Presiding Justice)