In a case where the effect of the existing provisional seizure is terminated as the land is expropriated in accordance with the Act on the Acquisition of Land, etc. for Public Works and the Compensation Therefor, whether it constitutes unjust enrichment for a third party who acquired the ownership of the land after the provisional seizure is executed (negative)

According to Article 45 (1) of the Act on the Acquisition of Land, etc. for Public Works and the Compensation Therefor, in the case of land expropriation, a project implementer acquires the ownership of the land as of the commencement date of the expropriation and other rights on the land are extinguished. Even if provisional seizure is executed on the land to be expropriated, the provisional seizure on the land becomes absolutely null and void due to the project implementer's original acquisition of the ownership due to the expropriation of the land. In this case, unless otherwise provided in the Act, the provisional seizure on the land does not automatically transfer the claim for the expropriation or have the effect of prohibiting the disposal of provisional seizure on the land. Furthermore, the provisional seizure does not control the exchange value of the object unlike the secured real right, and the legal principle on subrogation recognized in the case of the secured real right is not applicable to the real right. Accordingly, while the provisional seizure on the land becomes null and void due to the acquisition of the ownership of the land by a third party after the provisional seizure is executed, the land owner, whose existing provisional seizure becomes void due to the expropriation of the land in accordance with the Public Works Act.

Article 45(1) of the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects

Supreme Court Decision 98Da62961 delivered on July 4, 2000 (Gong2000Ha, 1832) Supreme Court Decision 2001Da83777 Delivered on July 11, 2003 (Gong2003Ha, 1709) Supreme Court Decision 2003Da64206 Delivered on April 16, 2004 (Gong2004Sang, 801)

The Bankruptcy Trustee of ○○ Mutual Savings and Finance Company, Inc. (Attorney Yoon-soo, Counsel for the plaintiff-appellant)

Defendant

Seoul High Court Decision 2006Na13102, 13119 decided August 11, 2006

The appeal is dismissed. The costs of appeal are assessed against the plaintiff (Counterclaim defendant).

The grounds of appeal are examined.

1. As to the duty to return unjust enrichment

According to Article 45 (1) of the Act on the Acquisition of Land, etc. for Public Works and the Compensation therefor (hereinafter “Public Works Act”), in the case of the expropriation of land, a project implementer acquires the ownership of the land as of the commencement date of the expropriation and other rights related to the land are extinguished. Even if a provisional attachment is executed on the land to be expropriated, the provisional attachment of the land becomes absolutely null and void due to the temporary expropriation of the land by the project implementer's original acquisition of the ownership due to the expropriation. In this case, unless otherwise provided for in the Act, the provisional attachment of the land naturally becomes null and void due to the transfer of the claim for the expropriation, or the provisional attachment of the land does not affect the exchange value of the land, unlike the secured real right, and the principle of subrogation, which is recognized in the case of the secured real right, is not applicable thereto (see Supreme Court Decisions 98Da62961, Jul. 4, 200; 201Da83770, Jul. 11, 2003; 2004Da463606, etc.

In the same purport, the court below is just in rejecting the claim for return of unjust enrichment filed by the plaintiff, who is the provisional seizure creditor of the land of this case, against the defendant, who is the third acquisitor of the land of this case and the creditor of compensation for expropriation, and there is no violation of law by misunderstanding

2. As to the succession of obligation

Examining the reasoning of the judgment below in light of the records, the judgment of the court below that the defendant cannot be deemed to have succeeded to the status of the provisional seizure obligor merely because the defendant purchased the land of this case from the previous owner is just and there is no error of law such as misunderstanding of legal principles

3. As to subrogation

The court below held that the subrogation system is a system that is recognized as a real right holder, while the provisional seizure creditor is merely a creditor who is not a real right holder. In light of the above legal principles and the nature of security rights and provisional seizure, and the relevant provisions of the Public Works Act, etc., the above judgment of the court below is just, and there is no error in the misapprehension of legal principles as to the analogy of subrogation as asserted in the grounds of appeal.

4. 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 Jeon Soo-ahn (Presiding Justice)