[Judgment of the court below]

Sejong Mutual Savings Bank and one other (Attorneys Park Young-hee et al., Counsel for the plaintiff-appellant)

September 12, 2014

Suwon District Court Decision 2013Ra8160 Decided February 6, 2014

1. Of the judgment of the court of first instance, the part against Defendant Shindo Construction Co., Ltd. and the part against the Plaintiff against Defendant Spoi Mutual Savings Banks falling under the following shall be revoked:

The Plaintiff shall pay the amount calculated by 5% per annum from June 22, 2013 to October 31, 2014; 20% per annum from June 22, 2013 to October 31, 2014 to the date of full payment; and Defendant Shindo Construction Co., Ltd. shall pay 18,500,000 won per annum to the date of full payment; and 20% per annum from June 25, 2013 to the date of full payment.

2. The plaintiff's remaining appeal against the defendant Sejong Mutual Savings Bank is dismissed.

3. Of the total litigation costs, the part arising between the Plaintiff and the Defendant Sejong Mutual Savings Bank shall be four minutes, and the remainder shall be borne by the Plaintiff, and the remainder shall be borne by the Defendant Sejong Mutual Savings Bank, respectively, and the part arising between the Plaintiff and the Defendant Newdo Construction Co., Ltd. shall be borne by the Defendant Shin

4. The amount of money under paragraph (1) shall be provisionally executed.

The judgment of the court of first instance shall be revoked. The judgment of the plaintiff shall be revoked. The defendant Sejong Mutual Savings Bank shall pay to the plaintiff 51,317,474 won, the 18,500,000 won, and the 20% interest per annum from the day following the delivery of the complaint of this case to the day of full payment.

1. Basic facts

A. On October 13, 2007, Nonparty 1 purchased 4/12 shares out of 1 real estate listed in the separate sheet (hereinafter referred to as "each real estate listed in the separate sheet," and individually referred to as "○ real estate" according to the sequence), and completed the registration of ownership transfer on October 21, 2007. On November 14, 2009, he additionally purchased 2/12 shares in the compulsory auction procedure and completed the registration of ownership transfer on November 25, 2009, and Nonparty 2 purchased 6/12 shares out of the real estate on September 11, 2008 and completed the registration of ownership transfer on September 25, 2008, and as of September 25, 2008, Nonparty 2 and Nonparty 1 shares in each of the real estate of this case as follows:

Nonparty 1 (Land Number 1 omitted) 6/126/122 (Land Number 2 omitted) 2 (Land Number 2 omitted) 5,158/6, 297 1,139/6,2973 (Land Number 3 omitted) 8/124 (Land Number 4 omitted) 8/124/124 (Land Number 4 omitted) 8/124/125 (Land Number 5 omitted) 8/124/126 (Land Number 6 omitted) 0

B. On September 11, 2008, the Plaintiff loaned KRW 200,000,000 to Nonparty 1 on the due date for reimbursement of September 11, 2009 and interest KRW 1,500,000,000. The Plaintiff concluded a mortgage contract on July 21, 2010 with respect to the non-party 1 share (4/12 share for one real estate) of each of the instant real estate for the purpose of securing the above loan claim, and completed a registration of establishment of a collateral for the same day to the maximum debt amount of KRW 200,000,000 on the same day (Therefore, the Plaintiff’s assertion that there is no secured collateral against the non-party 1 is without merit).

C. On July 20, 2010, Defendant Sporo Mutual Savings Bank (hereinafter “Defendant Bank”) received, under the name of Defendant Bank, the establishment registration of a neighboring mortgage amounting to KRW 390,000,000 on each of the instant real estate in order to secure the obligation for loans to Nonparty 2, and on August 1, 2012, Defendant Newdo Construction Co., Ltd (hereinafter “Defendant Company”) received a decision of provisional attachment of KRW 18,50,000 on August 2, 2012 on each of the instant real estate, with respect to Nonparty 2’s portion among the instant real estate, the said provisional attachment registration was completed on August 2, 2012.

D. On February 10, 2010, in order to secure the obligation for loans to Nonparty 2, the Howon Credit Union had registered the establishment of a neighboring mortgage of KRW 910,00,000 (the secured debt amount is KRW 857,114,520) in the name of the Howon Credit Union (the secured debt amount is KRW 857,114,520) with respect to each of the instant real estate. However, on November 6, 2012, the Youngwon Credit Union applied for voluntary auction on the basis of the above secured mortgage, and on November 6, 2012, the auction procedure for real estate was commenced (hereinafter “instant auction procedure”).

E. In the instant auction procedure, each of the instant real estate was sold at KRW 1,355,50,000 for the purchase price. Of the amount of KRW 1,347,484,483 to be actually distributed on April 23, 2013, the executing court prepared a distribution schedule for each of the instant real estate dividends of KRW 1,347,14,520 for the first-class creditor and the first-class credit union, the second-class mortgagee, the second-class mortgagee, and KRW 441,317,474 for the Defendant bank, the second-class mortgagee, the third-class mortgagee, and KRW 18,50,00 for the Defendant Company, the third-class mortgagee, and KRW 3,706,202 for the Plaintiff, the third-class mortgagee, the third-class mortgagee, and KRW 26,846,287 for each of the instant real estate dividends calculated on the basis of the amount of each of the instant real estate dividends calculated on the basis of the sales price.

Non-party 1 298,538,573 won 149,269,287 won 149,286,286 won 1 real estate 2324,41,224 won 265,731,792 won 58,679,432 won 2606,671,545 won 404,447,697 won 202,223,848 won 3 through 5 real estate 417,863,17,863,141 won 140 won,269,286, 286, 147, 147, 202, 202, 360, 417, 484, 483, 147, 196, 147, 157, 197, 147, 147

[Ground for Recognition: Facts without dispute over the defendant bank; Gap evidence 1-1, 3-1 through 6, Gap evidence 4-1 through 3, Gap 5, 7, 8, Eul evidence 12, the purport of the whole pleadings, and constructive confession against the defendant company]

2. Determination:

A. Summary of the plaintiff's assertion

The Plaintiff asserts to the purport that, in the event that part of the real estate jointly mortgaged is owned by the obligor, and that part of the real estate is owned by the surety, the joint mortgagee should preferentially distribute out of the auction price of the real estate owned by the obligor pursuant to Article 368(1) of the Civil Act, and only if there is a shortage, the additional distribution should be made out from the auction price of the real estate owned by the obligor. As such, the Defendant bank can only receive dividends out of the maximum debt amount up to KRW 390,000,00,000, the amount of KRW 51,317,474, which has been distributed in excess of the above amount, shall be returned to the Plaintiff as unjust enrichment. The Defendant company is merely a provisional attachment authority with respect to the portion of the real estate owned by Nonparty 2. As long as there is no balance remaining after the senior mortgagee received all of the assets owned by Nonparty 2 and received dividends from the auction price for the portion owned by Nonparty 1, the said amount should be returned to the Plaintiff.

B. Determination

1) Since the execution of distribution according to the confirmed distribution schedule does not confirm the right under substantive law, in case where the creditor who is liable to receive the distribution did not receive the distribution and received the distribution, the creditor who did not receive the distribution has the right to claim the return of unjust enrichment against the person who received the distribution even though he did not receive the distribution regardless of whether he raised an objection to the distribution (see Supreme Court Decision 2006Da21538, Feb. 22, 2007, etc.).

On the other hand, Article 368(1) of the Civil Act, which provides that "where a mortgage is created on several real estate as security of the same claim, if a mortgage is created on several real estate at the same time, the share of the claim shall be determined in proportion to the proceeds of the auction of each real estate shall be in excess of the proceeds of the auction of the real estate owned by the joint mortgagee." Thus, the auction court shall preferentially distribute the proceeds of the auction of the real estate owned by the debtor to the joint mortgagee and pay dividends to the proceeds of the auction of the real estate owned by the surety at the same time (see, e.g., Supreme Court Decision 2008Da41475, Apr. 15, 2010).

2) As to the instant case, Nonparty 1, who owned part of the shares in the instant real estate to Nonparty 2, who is the creditor of the non-party 1 and the non-party 2 and the non-party 2, who is the joint mortgagee of the instant real estate, and the non-party 1, who is the owner of the non-party 2, is in the position of joint guarantor of the non-party 2, and in this case, the above Supreme Court stated that the non-party 1 is not applicable. However, according to the evidence No. 1, the non-party 2, the debtor of the non-party 1 and the non-party 2, who is the non-party 1 and the non-party 3, the non-party 1 and the non-party 2, who is the non-party 4 and the non-party 2, the non-party 1 and the non-party 3, who is the non-party 1 and the non-party 2, the non-party 1 and the non-party 2, the non-party 1 and the non-party 2, the non-party 97.

However, according to the evidence Nos. 3-1-2 of this case: (a) the amount of 4/12 shares of the non-party 2 was established in the name of the plaintiff as to the non-party 4/12 shares; (b) the amount of 2/12 of the real estate ± 4000 shares of the non-party 2 was not distributed to the non-party 3; (c) the amount of 6/12 of the dividends of 4/12 should be distributed to the non-party 3; and (d) the amount of 4/17 of the dividends of the non-party 1 shares should be distributed to the plaintiff 40-2 of the above amount of 40-12 shares of the non-party 2; and (e) the amount of 60-1-27 of the dividends dividends of the non-party 2 of the above amount should be distributed to the non-party 3; and (e) the amount of dividends of 4/12 of the above amount should be distributed to the plaintiff.

3) Accordingly, the return of unjust enrichment by the Plaintiff. As to the Plaintiff’s unjust enrichment, the Defendant bank is obligated to pay damages for delay calculated at the rate of 5% per annum under the Civil Act from June 22, 2013 to October 31, 2014, which is the date when the instant complaint was served, and the rate of 20% per annum under the Act on Special Cases Concerning Expedition, etc. of Legal Proceedings, from the following day to the date when the said Defendant rendered a substantial judgment, to the date when the claim is rendered for the existence and scope of the obligation. The Defendant Company is clearly liable to pay damages for delay calculated at the rate of 18,50,00 won and 20% per annum under the Act on Special Cases Concerning Expedition, etc. of Legal Proceedings from June 25, 2013 to the date when the payment is made.

3. Conclusion

Therefore, the plaintiff's claim against the defendant company shall be accepted on the ground of its reasoning, and the plaintiff's claim against the defendant bank shall be accepted on the ground of its ground within the scope of the above recognition, and the remaining claim against the defendant bank shall be dismissed on the ground of its ground. Since the part against the defendant company and the part against the plaintiff against the defendant bank corresponding to the money ordered to pay as above in the judgment of the court of first instance are unfair on the ground of its conclusion, it shall be revoked in its conclusion, and all of them shall be ordered to pay the above money to the defendants, and the remaining appeal against

[Attachment Omission of List of Real Estate]

Judges Ham-sik (Presiding Judge)