In cases where a judgment on the merits in favor of the creditor becomes final and conclusive after the dividend has been deposited for the creditor of provisional seizure in the real estate auction procedure, whether the claim of the creditor of provisional seizure who ordered payment in the final and conclusive judgment on the merits is extinguished at the time the judgment on the merits becomes final and conclusive (affirmative in principle), and whether the effect of extinction of the claim is maintained even if the debtor is declared bankrupt after the final and conclusive judgment on the merits became final and conclusive (affirmative)

Articles 348(1), 384, and 423 of the Debtor Rehabilitation and Bankruptcy Act; Articles 160(1)2 and 161(1) of the Civil Execution Act; Article 741 of the Civil Act

Supreme Court Decision 2016Da227014 Decided July 24, 2018 (Gong2018Ha, 1756)

UPP Specialized Co., Ltd. (Law Firm Loteex, Attorneys Cho Han-tae et al., Counsel for the plaintiff-appellant)

Defendant in bankruptcy of the Nonparty

Seoul Central District Court Decision 2017Na4972 Decided May 17, 2017

The judgment of the court below is reversed, and the case is remanded to the Seoul Central District Court Panel Division.

The grounds of appeal are examined.

1. The distribution court shall deposit the dividend for the creditor of provisional seizure when it executes the distribution in the auction procedure for the real estate, and then pay the deposit money to the creditor of provisional seizure when the cause of deposit has ceased to exist due to the final judgment in favor of the creditor in favor of the principal claim, etc. The claim of the creditor of provisional seizure who ordered the payment in a final judgment on the merits shall be extinguished at the time of the final judgment on the merits to the extent that the amount deposited is appropriated by the amount deposited as above, unless there are any special circumstances. Even if the debtor becomes bankrupt after the final judgment on the merits becomes final and conclusive and the

Therefore, while the provisional attachment creditor fails to receive the deposit after the judgment in favor of the principal claim became final and conclusive, even if the bankruptcy trustee pays the deposit on the grounds that the debtor was declared bankrupt, the bankruptcy trustee shall return it to the provisional attachment creditor for whom the judgment in favor of the principal claim becomes final and conclusive.

2. A. The court below rejected the Plaintiff’s claim for return of unjust enrichment on the ground that the provisional attachment obligee’s right to claim for payment of deposit belongs to the Defendant, the bankruptcy trustee, even if the payment order of the principal case became final and conclusive prior to the declaration of bankruptcy as long as the obligor was declared bankrupt, even if the provisional attachment obligee’s right to claim for payment of deposit became final and conclusive prior to the declaration of bankruptcy, and the Defendant’s receipt of deposit is justifiable.

B. Review of the reasoning of the first instance judgment as cited by the lower court and the record reveals the following facts.

1) On December 28, 2012, after the provisional attachment registration of the Bank of Korea was completed by the Bank of Korea on December 28, 2012, the compulsory auction of real estate (hereinafter “instant compulsory auction”) was commenced on January 5, 2015 at the request of the Korea Technology Credit Guarantee Fund (hereinafter “instant compulsory auction”).

2) On October 28, 2015, dividends were paid in KRW 62,637,409 to the Plaintiff, the transferee of the claim of our bank, a creditor holding a provisional attachment, following the compulsory auction of this case. The executing court deposited the said amount of dividends to the Plaintiff pursuant to Article 160(1)2 of the Civil Execution Act (hereinafter “instant deposit”).

3) The Plaintiff filed an application for a payment order against the Nonparty for the payment order for the acquisition money (Seoul Central District Court Decision 2015Da54534, Dec. 3, 2015). On December 3, 2015, the said court issued the payment order (hereinafter “instant payment order”) to the Plaintiff within the limit of KRW 157,072,877 and delay damages thereon, and the instant payment order was finalized on December 25, 2015.

4) The Nonparty filed a petition for bankruptcy with Seoul Central District Court 2015Hadan10668, and the said court appointed the Defendant as the bankruptcy trustee on April 21, 2016, when it declared bankruptcy against the Nonparty.

5) On May 9, 2016, the Defendant paid KRW 62,637,409 to the instant deposit.

C. The above facts are determined as follows in light of the legal principles as seen earlier.

1) The Plaintiff’s claim against the Nonparty was extinguished within the scope of appropriation of the instant deposited money when the instant payment order, which has the same effect as the final and conclusive judgment, pursuant to Article 474 of the Civil Procedure Act, became final and conclusive. As such, the effect of extinguishment of the claim that had already occurred, even after the Nonparty was declared bankrupt, is maintained as it is even if the Nonparty was declared bankrupt. As a result of extinction of the deposit cause, the distribution court shall pay the deposit money to the Plaintiff, who is a provisional attachment obligee (Articles 161(1) and

2) It should be deemed that the Defendant, the bankruptcy trustee of the Nonparty, was paid the instant provisional seizure claim for the reason that the deposit money was already appropriated for the instant provisional seizure claim at the time when the payment order of the instant case became final and conclusive, without any legal ground, obtained the benefit corresponding to

3) Nevertheless, the lower court rejected the Plaintiff’s claim against the Defendant seeking the return of unjust enrichment amounting to deposit money solely on the grounds as indicated in its reasoning. In so doing, the lower court erred by misapprehending the legal doctrine on the time of extinguishment of the preserved claim and the subject of attribution of the dividends deposited for the creditor of provisional seizure where the creditor of provisional seizure obtained a final and conclusive judgment on the merits, thereby affecting the conclusion

3. Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Jo Hee-de (Presiding Justice)