Wonyol Jon, Request and Objection in Civil Enforcement Allocation, and Unjust Enrichment, The Justice, Vol. 178 (2020), pp. 212-248.
<Abstract>
Recent en-banc decision of the Supreme Court(2014da206983) affirmed again that a creditor without objection in allocation procedure has still a claim based on unjust enrichment.
This judgment mainly discusses in its rationale that which one between procedural law and substantive law should be put first, but the rationale should have gone beyond that. As it is undeniable that mission of procedural law is realization of substantive rights, it is more than clear that lack of objection to allocation cannot eliminate a creditor’s right. The Court however should have reviewed ― at the next stage― the requirements for unjust enrichment.
In this issue, a creditor without any lien cannot satisfy the requirements for unjust enrichment, while a creditor with lien can satisfy them. It is because requirements for unjust enrichment of this kind are on a par with the requirements for tort. In addition, the lack of request for allocation should be considered to generally eliminate a creditor’s right to unjust enrichment.
<Keywords>
#Wrong allocation in civil enforcement#Procedural law and substantive law#Requestfor allocation#Objection to allocation#Unjust enrichment
Wonyol Jon, Request and Objection in Civil Enforcement Allocation, and Unjust Enrichment, The Justice, Vol. 178 (2020), pp. 212-248.
<Abstract>
Recent en-banc decision of the Supreme Court(2014da206983) affirmed again that a creditor without objection in allocation procedure has still a claim based on unjust enrichment.
This judgment mainly discusses in its rationale that which one between procedural law and substantive law should be put first, but the rationale should have gone beyond that. As it is undeniable that mission of procedural law is realization of substantive rights, it is more than clear that lack of objection to allocation cannot eliminate a creditor’s right. The Court however should have reviewed ― at the next stage― the requirements for unjust enrichment.
In this issue, a creditor without any lien cannot satisfy the requirements for unjust enrichment, while a creditor with lien can satisfy them. It is because requirements for unjust enrichment of this kind are on a par with the requirements for tort. In addition, the lack of request for allocation should be considered to generally eliminate a creditor’s right to unjust enrichment.
<Keywords>
#Wrong allocation in civil enforcement#Procedural law and substantive law#Requestfor allocation#Objection to allocation#Unjust enrichment