질권자의 직접청구권 행사와 삼각관계 부당이득 -대판 2015. 5. 29. 선고 2012다92258을 중심으로-

When Supreme Court Judgment 2012Da92258, dated May 29, 2015, is viewed with a focus on the underlying claim relationship among the parties, the case certainly looks similar to the issue of unjust enrichment in the relations among three persons. However, this case is distinguished from a typical case of unjust enrichment in the relations among three persons, where wages exist as an act of property relocation, which is the subject matter of the garnishee, and settlement among the parties for the wages becomes a relevant issue after the release of the compensational relationship is finalized. Rather, in the above case, the claim pledgee, who is a real right holder, actively pursues collection by exercising his pledge right, causing involuntary contribution by the garnishee. Afterward, the collection is finally determined as having been made as an invalid pledge right, requiring restoration to the state prior to the exercise of the pledge right. The secured real right and execution systems are designed to allow creditors to substantially realize claims against debtors and satisfy the claims. Although individual claim relations inevitably exist as governed by the fundamental legal principles  in contact laws, if secured real right and execution procedures are employed to realize the claims, the process to release the claims should also be governed by the basic legal principles applicable to secured real right and execution. This aspect was overlooked in the above judgment. Some may counterargue that a compulsory execution process led by law enforcement must be distinguished from simplified private execution performed by secured real right holders. But is it reasonable to maintain the result of performance of invalid secured real rights? According to the above judgment, if no pledged claims exist, a claim pledgee’s exercise of the right to directly collect the claim falls under greater protection than general claim execution procedures to which compulsory execution process applies mutatis mutandis. It is difficult to establish a reason to protect the exercise of the right to directly collect the claims to make it sufficient to rationalize the different outcomes. In conclusion, the defendant bank, which did not have a pledge right, exercised the pledgee right to directly collect KRW 1,075,000,000 within the range of secured claims, thereby obtaining profits without legal cause and accordingly incurring loss to the plaintiff. In this regard, the defendant bank should return the above amount to the plaintiff as unjust enrichment. With respect to the KRW 425,000,000 outside the range of secured claims, the duty to return unjust enrichment cannot be enforced because the defendant bank received the money and immediately returned it to the defendant company, which is the pledger, thereby obtaining no substantial profit.