[손해배상(기)][공2019상,489]
In a case where the State or a local government entrusts a certain organization with the management of facilities for use and profit-making, and the organization supplies goods or services for its name and paid value-added tax on its own account, whether the State or the local government, which is the truster, obtained unjust enrichment by removing the truster from its debt without any legal ground (negative)
A person who gains a profit from another’s property or labor without any legal cause and thereby causes loss to another person shall return such profit (Article 741 of the Civil Act). There is no limitation on the method of obtaining “profit” which is the requirement for establishing such unjust enrichment. There is also benefit of passive increase of the same property as the occurrence of a fact, such as exemption from liability. However, where the State or a local government entrusts a certain organization with the management, etc. of facilities and allows it to use or profit from the facilities, and where the organization supplies goods or services to a third party on its own name and on its own account, the said organization is not the State or a local government, but the said organization is liable to pay value-added tax. Accordingly, it is merely a performance of the tax liability under the Value-Added Tax Act that the organization entrusted with the management, etc. of facilities supplies goods or services and pays value-added tax on its sole basis, and thus, it cannot be deemed that the State or a local government, the truster, obtained unjust enrichment
Article 741 of the Civil Act
Supreme Court Decision 95Da22061 Decided December 5, 1995 (Gong1996Sang, 200) Supreme Court Decision 2015Du48754 Decided July 11, 2017 (Gong2017Ha, 1656) Supreme Court Decision 2017Da225978, 225985 Decided December 5, 2017 (Gong2018Sang, 58)
Samdong Juvenile Association (Attorney Han-hee et al., Counsel for defendant-appellant)
Jung-gu, Daejeon Metropolitan City (Law Firm Seosan, Attorneys Na-soo et al., Counsel for the plaintiff-appellant)
Daejeon High Court Decision 2016Nu11665 decided October 20, 2016
The judgment of the court below is reversed, and the case is remanded to Daejeon High Court.
The grounds of appeal are examined.
1. A person who gains profits from another person’s property or labor without any legal cause and thereby causes damage to another person shall return such profits (Article 741 of the Civil Act). There is no limitation on the method of obtaining “profit” which is an element for establishing such unjust enrichment. This constitutes the benefit of passive increase of the same property, i.e., the occurrence of any fact, such as exemption from liability for family affairs, naturally, and not deemed losses (see, e.g., Supreme Court Decisions 95Da22061, Dec. 5, 1995; 2017Da225978, 22985, Dec. 5, 2017). However, where the State or a local government entrusts a certain organization with the management of facilities to use or make profits from such facilities, and where the organization supplies goods or services to a third party on its own name and on its account, it cannot be deemed that the said organization bears value-added tax liability on the sole basis of the fact that it supplied goods or services to the State or a local government without statutory reason.
2. The record reveals the following facts.
A. Since the Plaintiff entered into an agreement with the Defendant, which is a local government, on August 198, on the operation, management, and consignment of the instant training center (hereinafter “instant agreement”), the Plaintiff has been managing and operating the instant training center owned by the Defendant to the present day after having renewed the said agreement several times.
B. According to the instant agreement based on the Gu Ordinance on the Establishment and Entrusted Operation of Youth Training Facilities in Jung-gu, Daejeon Metropolitan City (amended by the Jung-gu, Daejeon Metropolitan City Ordinance No. 1049, Nov. 7, 2014), the Defendant shall entrust the Plaintiff with the maintenance and management of the entrusted property, such as various facilities, within the training hall in this case, and the entrusted affairs shall be performed in the name of the Plaintiff, and the expenses incurred in the operation of the training hall in this case shall be borne by the Plaintiff, and the Defendant may partially subsidize the expenses incurred in the operation of the training hall in relation to the entrusted affairs (Articles 4, 6, 9, and 10). The Plaintiff may collect user fees from the user in relation to
C. On October 31, 2013, the Plaintiff, while operating the instant training center, paid KRW 453,719,360 in total the value-added tax and additional dues for the first period from the first period to the first period from 2007 to the first period from 2012.
3. Examining these facts in light of the aforementioned legal principles and relevant provisions, the Plaintiff merely supplied goods or services to the general public upon entrustment of the operation of the instant training center and paid the value-added tax and the additional dues that the Plaintiff owes as a party to the transaction. Accordingly, the Defendant, a local government, cannot be deemed to have the obligation to return the Plaintiff with unjust enrichment by obtaining
Nevertheless, solely on the grounds indicated in its reasoning, the lower court determined otherwise by: (a) the Defendant is obligated to ultimately bear value-added tax, etc. on the above supply; and (b) the Plaintiff is merely obligated to return the amount to the Plaintiff as unjust enrichment. In so doing, the lower court erred by misapprehending the legal doctrine on unjust enrichment, thereby adversely affecting the conclusion of the judgment;
4. Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.
Justices Kwon Soon-il (Presiding Justice)