[1] In a case where a distribution schedule is prepared by the creditor that received dividends in excess of the amount of claims that should be duly distributed, whether the creditor has a benefit to seek confirmation of the amount of claims that the creditor would be duly apportioned against the creditor (negative)

[2] Whether the debtor or the owner of real estate is qualified to file a lawsuit of demurrer against the distribution against the mortgagee (affirmative)

[3] Whether filing a lawsuit seeking return of unjust enrichment of a claim subject to an objection against distribution during the continuation of a lawsuit of demurrer against distribution constitutes a double lawsuit (affirmative)

[1] In a case where a distribution schedule has been prepared that the creditor has received the amount exceeding the legitimate amount of a claim as a dividend, the interested debtor or the owner of the real estate files a lawsuit of demurrer against the creditor or a lawsuit of filing a claim for restitution of unjust enrichment, and the creditor files a lawsuit of confirmation of the existence of an obligation against the portion exceeding the legitimate amount of claim to be distributed is unlawful as

[2] Where a debtor raises an objection against a demand for distribution by a creditor who has an executory exemplification, the debtor shall file a lawsuit of demurrer against the creditor, and where the debtor raises an objection against the debtor with respect to the demand for distribution by a creditor who has no executory exemplification, the creditor shall file a lawsuit of confirmation of the claim against the debtor. However, the creditor who has no executory exemplification as referred to in the latter does not include a secured creditor such as a mortgagee, but in this case, the debtor or the owner of real estate may file a lawsuit of demurrer against the mortgagee against the right to collateral security.

[3] When a judgment on the merits of a lawsuit of demurrer becomes final and conclusive, it is unlawful to seek the transfer of a claim for partial dividend payment and the implementation of the procedure for notification of transfer because the debtor made a distribution schedule against the same creditor more than the amount reasonably entitled to receive dividends when the lawsuit of demurrer against distribution is pending and the debtor made a distribution schedule against the same creditor and made unjust enrichment for the same creditor, as long as res judicata effect takes place in the judgment on the existence of substantive right to receive dividend payment as to the amount of dividend to which

[1] [1] Article 228 of the Civil Procedure Act / [2] Articles 606(3), 659(1) and (3) of the Civil Procedure Act / [3] Articles 202(1), 234, and 595 of the Civil Procedure Act

[1] Supreme Court Decision 96Da34009 delivered on November 22, 1996 (Gong1997Sang, 32) / [3] Supreme Court Decision 97Da45532 delivered on February 27, 1998 (Gong1998Sang, 883), Supreme Court Decision 99Da3501 delivered on January 21, 200 (Gong2000Sang, 477)

Theman District Court Decision 201Na1488 delivered on August 2, 201

Choi Chang-gu (Attorney Park Chang-soo, Counsel for the plaintiff-appellant)

Suwon District Court Decision 97Gahap8256 delivered on November 6, 1998

Supreme Court Decision 99Da64292 Delivered on March 28, 2000

1. The lawsuit of this case, which is changed in exchange from the trial after remand, shall be dismissed; and

2. The total costs of the lawsuit shall be borne by the plaintiff.

On June 1, 1996, the guaranteed obligation of the Plaintiff against the Defendant is confirmed that there is no part in excess of the interest rate of 29,345,296 won of the purport of the claim and the interest rate of 24% per annum from November 14, 1997 to the date of full payment. The Defendant transferred to the Plaintiff the claim for dividend payment of the remainder of the amount calculated by deducting interest of 24% per annum from the interest rate of 105,018,345,296 of the amount distributed to the Defendant by the same court in the Suwon District Court in the case of a real estate rental auction in Suwon-nam Branch 97,17546, Suwon District Court, Sungwon-nam Branch 97 to the date of full payment. The Defendant returned the claim to the Plaintiff for the above transfer (the above notification of the claim made to the Defendant) by the Defendant.

The part of the judgment of the court below against the plaintiff shall be revoked. The defendant shall receive from the plaintiff the amount of 28,470,243 won and 24% interest per annum from October 11, 1997 to the date of full payment, and implement the procedure for registration of cancellation of the registration of the establishment of a neighboring mortgage completed as No. 39091 on July 3, 1996 with respect to each real estate listed in the attached list.

1. Facts of recognition;

The following facts are not disputed between the parties, or there is no dispute between Gap evidence 1-1 to 4, Gap evidence 2, Eul evidence 3, Eul evidence 5, Eul evidence 3-1 to 4, Eul evidence 4, 5, and 6-1, 2, Eul evidence 8, Eul evidence 9, Eul evidence 11-1, 11-2, Eul evidence 12, Eul evidence 13, Eul evidence 12, and witness statement of the court below, and the whole purport of the arguments by the court below after the examination of the defendant himself, and there is no counter evidence.

(a)In the case of the non-party Young-Electronic Co., Ltd. (hereinafter referred to as the "Yyoung-Electronic Co., Ltd.") borrowed 250,000,000 won in total from the defendant on six occasions from September 2, 1995 to September 30, 1995, at the interest rate of 25% per month, through the non-party Young-Electronic Co., Ltd. (hereinafter referred to as the "Yyoung-Electronic Co., Ltd.") and, as a security for each borrowed amount, deliver to the defendant the number of shares issued by the new electronic Co.

(b)After December 195, when the non-party financial company was in default, it was found that the non-party financial company collected the shares per unit (total par value of KRW 110,000,000) of the issuance of the non-party financial company through the above interference on December 25, 1995 and then newly delivered to the defendant the shares per unit (amount of KRW 110,000,000) of the issuance of the non-party financial company.

C.On June 1996, as the defendant urged the repayment of the above loan, he proposed that he will provide a physical security instead of requesting a grace period for the repayment of the loan. On July 1, 1996, the defendant accepted it and concluded a mortgage contract with the non-party Jung Young-young who represented the defendant and the plaintiff as to each real estate listed in the separate sheet owned by the plaintiff (hereinafter referred to as the "real estate of this case") with a maximum debt amount of 25,000,000 won, the mortgagee, the defendant, the debtor, the debtor, the debtor, and the plaintiff of the right to collateral security.

(d)In the contract to establish the right to collateral security, the party has used the printed form of a contract to establish the right to collateral security (No. 11-1) which was kept in the certified judicial scrivener office, and Article 1 of the above contract states that the debtor establishes the right to collateral security in order to secure the creditor's debts and obligations for bills or checks which have been or will be paid at present or in the future.

E. On July 3, 1996, the establishment registration of a mortgage (hereinafter referred to as the "establishment registration of a mortgage of this case") was completed on July 3, 1996 with respect to the real estate of this case by Suwon District Court, Gwangju District Court, Gwangju District Court, the registration office of July 3, 1996, and the defendant thereafter, determined 40,000,000 won around July 1996, and additionally lent 130,000,000 won, including the sum of 90,000,000 won around September 3, 1996, as interest rate of 2% per month.

F. After that, upon the settlement of bankruptcy on July 1, 1997, the defendant applied for an auction for the exercise of security right to the real estate of this case on or around September 12, 1997, and the above auction procedure was commenced on the 13th of the same month. On October 10, 1997, the plaintiff deposited the money with the claim that the amount of the non-payment remains at KRW 119,981,370, out of the secured debt in the registration of creation of a new mortgage of this case. On November 13, 1997, the defendant reserved the objection that the above deposit was partially repaid.

G. The auction procedure concerning the real estate of this case is suspended not later than the date of the pronouncement of the trial before remanding. The procedure was initiated while the case was pending in the Supreme Court, and the successful bidder was awarded a successful tender on December 20, 199 and the distribution procedure was commenced in full on March 7, 200, and the execution court distributed KRW 319,026,613 after deducting auction expenses, etc. from the successful bid price. On the ground that the defendant, who is the right holder of the first priority or the remaining claim is recognized as KRW 105,018,630 as stated in the order of the judgment before remanding the case, the defendant, who is the right holder of the first priority right, shall distribute the above money to the defendant, and the remaining amount is distributed to the plaintiff, who is the owner, as a surplus of KRW 214,07,983.

(h) The Plaintiff is currently continuing to file a lawsuit of demurrer against the distribution with the Defendant in Suwon District Court 200Gahap1781, the remaining amount of the claim of the Defendant is only KRW 28,470,243, and the said distribution procedure stated an objection against the Defendant.

2. The plaintiff's assertion

A. The provision on the scope of the secured obligation in the document establishing the collateral security agreement, which was written on the instant real estate, is merely an example. If the intent of the parties is reasonably interpreted in consideration of various circumstances made before and after the completion of the establishment registration of the collateral security right, the secured obligation of the instant collateral security is the amount equivalent to KRW 130,000,000 additionally borrowed from the Defendant by Young-Electronic after completing the establishment registration of the collateral security right of the instant case. The amount borrowed by Young-Electronic prior to the completion of the establishment registration of the collateral security right of the instant case is not subject to the security right.

B.The interest accrued from the above secured debt of KRW 130,00,000 shall be KRW 19,326,666 from April 1, 1997 to November 13, 1997 from which the Defendant received the deposit money, and if the remainder is appropriated by first appropriating the amount of KRW 119,981,370 deposited by the Plaintiff to the interest, the principal shall remain 29,345,296, and there is no portion exceeding the interest accrued from November 14, 1997 to 24% per annum.

C.However, in the auction procedure of the real estate of this case, the court of execution prepared a distribution schedule by allocating to the plaintiff the amount exceeding the remaining debt amount of the above recognition to the plaintiff, which is erroneous. The plaintiff is seeking confirmation that the plaintiff's guaranteed debt does not exist in order to determine the legitimate credit amount to be distributed to the defendant in the distribution procedure.

D. Ghana has a duty to return to the Plaintiff the claim for dividend payment equivalent to the difference between the amount entered in the above distribution schedule and the Defendant’s legitimate dividend, and the Defendant has a duty to return to the Plaintiff the claim for dividend payment with respect to the amount equivalent to the difference between the amount entered in the above distribution schedule and the Defendant’s legitimate dividend, and the Defendant has a duty to transfer the above claim for dividend payment to the Plaintiff and to perform the notification procedure.

3. Whether a request for the confirmation of existence of an obligation is legitimate;

First of all, we examine whether the plaintiff's claim for the confirmation of existence of the above debt exists a benefit of confirmation. Ultimately, the amount that the defendant is entitled to receive in the auction procedure on the real estate of this case is determined according to the scope of the plaintiff's water guarantee obligation against the defendant. The above execution court made by erroneous judgment that the defendant distributes to the defendant more than the amount that the defendant actually received as dividends, and distributed less amount to the plaintiff who is the owner of the real estate. Thus, the preparation of the above distribution schedule is erroneous. For correction, the defendant sought the scope of the plaintiff's water guarantee obligation against the defendant, i.e., the reasonable amount that the defendant is entitled to receive as a lawsuit for the confirmation of existence of the debt, and if the scope of the above debt becomes final and conclusive by the judgment of this case, the lawsuit of confirmation has benefit of confirmation.

However, a lawsuit for confirmation is permitted when the plaintiff's right or legal status exists in danger, and it is the most effective and appropriate means to resolve the dispute. The distribution procedure is the procedure for distributing the proceeds of real estate, etc. subject to compulsory execution by the court of execution to the right holders, such as creditors. The court of execution is the procedure for distributing the proceeds of real estate, etc. subject to compulsory execution to the right holders. The court of execution shall prepare a distribution schedule calculated by each right holder based on the account statement, etc. submitted by each creditor, etc., inspect the distribution date, open the distribution date, make the distribution schedule to the interested parties, and make the distribution schedule confirmed by hearing opinions from creditors and debtors, and the party dissatisfied with the distribution schedule may make a statement of objection on the date of distribution. In such case, the court of execution shall suspend the distribution of the disputed portion among the claims subject to compulsory execution, and only distribution shall be made within seven days from the date of distribution, and the creditor or debtor who has raised an objection shall file a lawsuit of objection against distribution pursuant to the suspended distribution procedure.

Thus, the plaintiff, who seeks correction of the above distribution schedule prepared by mistake as alleged by the plaintiff, was present on the date of distribution, stated an objection, and filed a lawsuit of demurrer against distribution against the defendant, and received correction of the distribution schedule in accordance with the result of the judgment, is an appropriate method to fundamentally resolve the dispute surrounding the scope of secured debt of the right to collateral security in this case, and it is sufficient to do so. However, the plaintiff filed a lawsuit for confirmation of the existence of the debt in this case, separate from the lawsuit of objection against the above distribution, and thus, it is unlawful as there is

However, there is a conflict of view as seen below regarding whether the owner of the real estate, such as the plaintiff, or the debtor, who has an objection to the existence and scope of the claim for distribution, is eligible to file a lawsuit of demurrer against the other party creditor who has an objection to the distribution, but even if the owner of domestic real estate or the debtor is not eligible to file a lawsuit of demurrer against the mortgagee, it is always possible to file a lawsuit of unjust enrichment return against the creditor, such as the mortgagee who has received dividends in excess of the legitimate dividend amount. Thus, the plaintiff, the owner of the real estate of this case, as the owner of the real estate of this case, may ultimately resolve the legal dispute arising out of the secured debt of this case by filing a lawsuit of claiming a return of unjust enrichment against the defendant, who is the right to collateral security, to return the dividend amount to the plaintiff in excess of the legitimate dividend amount, and it is sufficient to do so. Therefore, the plaintiff's lawsuit of confirming the existence

[A debtor or a real estate owner may file a lawsuit of demurrer against the distribution of an executory exemplification where the debtor raises an objection against the creditor within seven days from the date of distribution rather than a lawsuit of demurrer against the distribution (Article 659(1) and (3) of the Civil Procedure Act). However, in cases where the debtor raises an objection against the mortgagee who makes a demand for distribution without executory exemplification, there is a conflict between the debtor's opinion affirming a lawsuit of demurrer against the distribution and that the creditor shall file a lawsuit of confirmation of the claim within five days by analogy of Article 606(3) of the Civil Procedure Act. The purpose of the procedure for confirmation of the claim under Article 606(3) of the Civil Procedure Act is to determine the existence and scope of the claim in the case where the creditor makes a demand for distribution without an executory title, and it is to determine the existence and scope of the secured right of the creditor, which is an executory right, as well as the security right of the creditor's right to demand distribution, which is an executory right, as it does not exist separately from the case where the creditor does not have an executory right.

4. Whether the request for return of unjust enrichment is lawful

The Plaintiff’s claim for return of unjust enrichment of this case is eventually made by receiving dividends in excess of a legitimate dividend amount without any legal cause, and thereby, thereby causing damage to the Defendant, who is the legitimate right holder to receive dividend. The Defendant transferred to the Plaintiff the claim for return of unjust enrichment against the difference between the amount entered in the above distribution schedule, which is unjust enrichment gained by the Defendant, and the amount of the claim for return of dividends in relation to the difference between the amount entered in the legitimate dividend amount and the

However, in relation to the mutual relationship between a lawsuit of demurrer against distribution and a claim of return of unjust enrichment, when the judgment on the merits of a lawsuit of demurrer against distribution became final and conclusive, res judicata has effect on the judgment on the existence of substantive right to receive dividends with respect to the amount of dividends to which an objection was raised, and where the party who received the judgment on the merits against the lawsuit of demurrer against distribution files a lawsuit seeking the return of dividends against the other party on the grounds that the amount of dividends established by the judgment on the merits became final and conclusive after the judgment on the lawsuit of demurrer against distribution became final and conclusive, the existence of the right to receive dividends determined in the judgment on the merits of the lawsuit of demurrer against distribution is a prior question in determining whether the right to claim a return of unjust enrichment has been established, and the parties cannot make any assertion different from the judgment on the merits of the lawsuit of objection against distribution, and the court cannot make any other judgment on the existence of the right to receive dividends (see Supreme Court Decision 9Da3501, Jan. 21, 2000). Accordingly, even in cases where a lawsuit of objection against distribution is pending, it is impermissible.

However, on March 14, 200, the Plaintiff filed a lawsuit of demurrer against the Defendant as seen earlier by Sungwon District Court Branch Branch Branch 2000Gahap1781, which had been pending on June 23, 2000, as the purport of the Plaintiff’s claim in this court, and by applying for change of the cause of claim, the same content against the Defendant as the cause of claim is the same. The fact that the Plaintiff filed a lawsuit of unjust enrichment return against the Defendant is significant in this court. Thus, the Plaintiff’s lawsuit of return of unjust enrichment in this case constitutes a duplicate suit in accordance with

However, there exists a conflict of opinion as seen earlier with respect to whether a lawsuit of demurrer against the distribution filed by the Plaintiff was legitimate, but even if the lawsuit of demurrer against the distribution is illegal as brought by a person who is not qualified as the plaintiff, the prohibition of double lawsuit is one of the litigation requirements naturally arising due to the continuation of the lawsuit, and if the previous lawsuit has already been brought with respect to the same case, even if the previous lawsuit is deemed unlawful due to lack of litigation requirements, the subsequent lawsuit is still deemed to be in violation of the prohibition of double lawsuit (see Supreme Court Decision 97Da45532, Feb. 27, 1998) and even if any opinion is taken, the lawsuit of return of unjust enrichment in this case shall be deemed to be unlawful as a duplicate lawsuit, even if it is not extinguished due to the failure of litigation requirements, rejection, etc. of the previous lawsuit, even

5. Conclusion

Therefore, since all of the lawsuits of this case that the plaintiff changed in exchange from the trial after the remand are unlawful, it shall be dismissed, and the total costs of the lawsuit shall be borne by the plaintiff who has lost.

Judges Lee Hong-hoon (Presiding Judge)