1. The plaintiff's claim is dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

1. The Plaintiff’s assertion on behalf of the Plaintiff, and subrogated the right to collateral security (hereinafter “mortgage of this case”) established by the Industrial Bank of Korea No. 103, 902, Busan-gun, Busan-gun, Busan-gun, Inc. (hereinafter “instant real property”) as the person liable for reimbursement. As such, the Plaintiff shall receive the distribution of the instant real property by subrogation of the Industrial Bank of Korea in the auction procedure regarding the instant real property. However, as the Defendant, a junior creditor, received the distribution of KRW 49,062,690, which the Plaintiff should receive without any legal cause on October 5, 2013, the Defendant shall return the said money distributed to the Plaintiff as unjust enrichment.

2. Determination

A. In a case where a creditor who is liable to receive a distribution fails to receive a distribution, and where a creditor who is unable to receive a distribution receives a distribution, the creditor who has not received the distribution may also make a claim for the return of unjust enrichment against the creditor who received the distribution, but the creditor who is entitled to make a claim for the return of unjust enrichment as above falls under the scope of creditors entitled to receive a distribution

(see, e.g., Supreme Court Decisions 98Da12379, Oct. 13, 1998; 2005Da14595, Aug. 25, 2005). In addition, where a person under subrogation can naturally receive a distribution without a demand for distribution, the subrogation right holder may participate in the distribution by subrogation of the person under subrogation if he/she proves that the person under subrogation is the person under subrogation by the date of distribution (before confirmation of the distribution schedule) even if he/she does not demand a separate distribution.

(Supreme Court Decision 2005Da34391 Decided September 29, 2005, and Supreme Court Decision 2005Da70816 Decided September 7, 2007). B

Comprehensively taking account of the overall purport of the arguments in the evidence Nos. 1, 9, 10, and 3 as to the instant case, the Industrial Bank of Korea, a subrogation, in the auction procedure for the instant real estate, can be naturally apportioned without demanding a distribution as a mortgagee, but the same shall not apply to the instant real estate.