1. The system of unjust enrichment is a system that orders a person who acquired property value to return it in cases where a change in the value of property between certain parties appears to be justifiable in general and form, but it is judged that the change in the value of property between them is unjust from a relative and substantive point of view (see Supreme Court en banc Decision 2014Da5531, Jun. 25, 2015).

2. Review of the reasoning of the lower judgment and the record reveals the following facts.

(1) The Nonparty, while working as the director of the Plaintiff’s ○○ Branch, embezzled and commercialized the Plaintiff’s certificate of deposit with his accomplice, requested the Defendant to open an account under the name of the Hybsan Co., Ltd. (hereinafter “Babsan”) and deposited part of the embezzlement amount in the said account. In the process of withdrawing the said deposit between May 10, 2005 and July 12, 2005, the Nonparty, etc. deposited KRW 2 billion into the Defendant’s special account with the cash issued by the cashier’s checks, and received 25 cashier’s checks listed in the attached list of the lower judgment from the Defendant (hereinafter “instant cashier’s checks”).

(2) Around July 27, 2005, the Plaintiff reported the instant cashier’s checks to the Defendant. Around that time, the Defendant suspended the payment of KRW 2,50 million for the instant cashier’s checks. Furthermore, the Defendant did not exercise the right to claim reimbursement of the instant cashier’s checks or the right to claim reimbursement of benefit with respect to the Defendant for the lapse of 10 years from the respective payment date.

(3) The Defendant, upon the Plaintiff’s report on the accident, took measures to suspend payment with the knowledge that the source of the issuing fund is embezzlement, and as a result, the Defendant came to continue to hold the issuing fund, not in the nature that the Defendant would ultimately hold. Furthermore, the right on the instant cashier’s checks ceased to exist due to the lapse of the period for the presentation of payment, and the extinctive prescription of the right to claim reimbursement of benefit expires, and the Defendant did not bear any payment obligation against the check holder, thereby having acquired the right to acquire the substantive right to dispose of the special deposit in which the said issuing fund was kept.

(4) Comprehensively taking account of the circumstances leading up to the issuance of the instant cashier’s checks and the fact that the Defendant did not appear to exercise the right to the instant cashier’s checks until the expiration of the extinctive prescription of the right to claim reimbursement of benefit, the instant cashier’s checks are held by embezzlement or a person who is well aware of such fact without distributing the cashier’s checks, and there is no possibility that the check might occur

3. According to the above facts, since all of the cashier’s checks of this case were extinguished by the period of presentation for payment without lawful presentation, the Defendant was not obligated to pay the check money to the holder of the instant cashier’s checks. As the extinctive prescription of the right to claim reimbursement of benefit expires, the Defendant was able to refuse to pay the check money on the ground that the extinctive prescription expires.

Therefore, even if the Defendant had a general and formal legal ground for acquiring the original issuing fund, as seen above, insofar as the Defendant became aware of the fact that the source of the issuing fund was embezzled by the Plaintiff’s accident report, and furthermore, became a situation where the Defendant could refuse to pay the said issuing fund, and there was no possibility to actually pay it, it cannot be deemed that the legal ground existed at the time of acquiring the said issuing fund in relation to the relationship with the client for issuance, but it is reasonable to view that the continued possession of the said issuing fund in relation to the Plaintiff, who was a loss, was unfair from the relative and substantial point of view, and thus, there is no legal ground.

4. Meanwhile, the above issuance fund was deposited in the name of the Defendant with the proceeds of the crime embezzled by the Nonparty, etc. from the Plaintiff, but part of which was transferred to the Defendant as the funds for the issuance of the cashier’s checks of this case, and thus, the causal relationship between the interest equivalent to the above issuance fund and the Plaintiff’s loss, without any legal ground

In addition, as seen earlier, the Defendant’s suspension of payment of the check money and still holds the amount equivalent to the check money as it is. Therefore, it is difficult to deem that there is no substantial benefit to the Defendant solely on the ground that the Defendant could waive the right of defense of extinctive prescription against the check holder and pay the check money, and even if the victim owns the right to claim compensation against the perpetrator, it does not demand the return of unjust enrichment against the benefit holder (see Supreme Court Decision 73Da29, Apr. 8, 1975), and it cannot be deemed that the Plaintiff did not incur any loss solely on the ground that the Plaintiff holds the right to claim compensation against the Nonparty, etc. based on a final and conclusive judgment. The Supreme Court Decision 70Da1012, Nov. 24, 1970 cited in the ground of appeal by the Defendant

5. Therefore, the lower court’s order to return the same purport is justifiable in that the Defendant’s right to claim reimbursement of benefit on the instant cashier’s checks was extinguished by the extinctive prescription, thereby gaining benefit equivalent to the same amount of the check and thereby causing losses to the Plaintiff. In so doing, it is reasonable for the lower court to have determined that the Defendant’s possession of the above benefit constitutes unjust enrichment in relation to the Plaintiff’s relationship. In so doing, the lower court did not err by misapprehending the legal doctrine on the elements for establishing unjust enrichment, extinctive prescription, and the nature of the separate deposit.

6. 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 on the bench.

Justices Lee Sang-hoon (Presiding Justice)