[2] The case holding that the claim for return of the real estate paid in kind by the performance of gambling debt is accepted on the ground that the degree of illegality of the beneficiary is significantly higher than that of the payer

[2] The case holding that the provider may seek the return of the house as the beneficiary, on the ground that the degree of illegality of the beneficiary revealed in the planned incentive in the internal Baduk, fraudulent behavior in the internal Baduk, the width in the process of lending and collecting gambling money, and neulity, etc. is considerably larger than the illegality of the provider due to the passive participation in the internal embankment, the continuation of gambling due to the increase in the amount of gambling debts, the transfer of the house, which is the only property for the repayment of gambling debts, is larger than the illegality of the provider due to the transfer of the house, which is the property for the repayment of gambling debts.

1. On the first ground for appeal

Examining the evidence adopted by the court below in light of the records, the fact-finding by the court below is just and there is no error of law by misconceptioning the facts in light of the rules of evidence. It is without merit.

2. On the second ground for appeal

According to Article 746 of the Civil Act, in a case where the benefit constitutes illegal consideration and there is an illegal cause to the provider, the beneficiary shall not be allowed to seek return of the illegal consideration, regardless of whether there is an illegal cause, or whether the degree of the illegal cause of the beneficiary or the illegality of the beneficiary is larger than that of the provider. However, in a case where the illegality of the beneficiary is significantly larger than that of the provider, and if it is not so, the provider’s claim for return is not allowed even in a case where the illegality of the provider is significantly larger than that of the provider, it goes against the fairness and the good faith principle. Therefore, in such a case, it is reasonable to interpret that the beneficiary’s claim for return is allowed as it is excluded from the application of the main sentence of Article 746 of the Civil Act (see Supreme Court Decision 93Da12947 delivered on December 10,

After duly recognizing the facts of the judgment of the court below, the plaintiff (Counterclaim defendant; hereinafter the plaintiff) decided to transfer the housing owned by the plaintiff to the non-party for the repayment of gambling debts to the non-party, but the degree of illegality of the non-party, who is the beneficiary, revealed in the planned incentive to the internal organ embankment, the fraudulent behavior in the internal organ embankment, the narrowness in the course of lending and collecting gambling money, and the conflict, etc., is considerably larger than the illegality of the plaintiff due to the plaintiff's transfer of the house, which is the only property for the repayment of gambling debts, and therefore, the decision that the plaintiff can seek the return of the above house is justifiable as it is in accordance with the above legal principles, and there is no reason to view that there is a misapprehension of the legal principles as to the "the principle of good faith and good faith" under Article 746 of the Civil Act and the "legal act" under Article 2 (1) of the Civil Act or the "social order" under Article 103 of the Civil Act.

3. Therefore, the appeal is dismissed and all costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Song Jin-hun (Presiding Justice)