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대법원 1992. 1. 21. 선고 90다17576, 90다17583 판결

[전부금·부당이득금][공1992.3.15.(916),868]

Main Issues

(a) The case holding that a single stockholder of the above school juristic person¡¯s mutual savings and finance company has taken over the debts to the school juristic person¡¯s mutual savings and finance company

B. Whether the “all acts bearing obligations” under Article 17 of the Mutual Saving and Finance Company Act is naturally included in the “act bearing obligations” (negative)

(c) In the case of the above "A", the case holding that unjust enrichment shall be established if the director of the general affairs of the above corporation pays the debts in the relation where the internal situation of the school juristic person was absent from confusion.

Summary of Judgment

(a) The case holding that if the principal executive officer of a school foundation, who is the debtor, has completed the registration of ownership transfer on his own real estate to a shareholder of the mutual savings and finance company, who is the creditor, and the principal executive officer of the school foundation, has agreed to sell the transferred real estate to a third party to repay the debts with the purchase price, and the said school foundation, accordingly, delivers all documents necessary for the registration of ownership transfer of the above real estate to a shareholder of the said mutual savings and finance company, and the said school foundation has completed the registration of ownership transfer, a single shareholder of the said mutual savings and finance company

(b) Article 17 of the Mutual Saving and Finance Company Act requires that all members obtain consent of 2/3 or more of the members or a resolution of the board of directors shall not be deemed to include exemption from obligations as a matter of course in “all acts bearing obligations.”

(c) In the case of the above "A", the case holding that in the case where the director of the general affairs of the above corporation, who was responsible for the failure of internal situations due to the occurrence of the division between the chief and the founder of the school juristic person, was exempt from the obligation and the creditor was repaid to the creditor, the creditor obtained a profit equivalent to the amount repaid without any legal cause, and thereby caused damage to the debtor.

[Reference Provisions]

A. Articles 453 and 454 of the Civil Act; Article 17(c) of the Mutual Saving and Finance Company Act; Articles 741 and 742 of the Civil Act

원고(반소피고), 상고인

[Defendant-Appellee] Defendant 1 and 3 others

Defendant (Counterclaim Plaintiff)-Appellee

[Defendant-Appellee] Defendant 1 and 3 others

Judgment of the lower court

Daejeon District Court Decision 89Na7793, 7809 (Counterclaim) delivered on November 8, 1990

Text

The appeal is dismissed.

The costs of appeal shall be assessed against the plaintiff (Counterclaim defendant).

Reasons

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. According to the court below's decision, the court below found that the defendant (Counterclaim Plaintiff; hereinafter the defendant) took over the above money from the plaintiff (Counterclaim defendant; hereinafter the defendant) on the ground that the above school staff and officers and employees belonging to the defendant were the borrower or its joint guarantor for the purpose of raising operating funds by taking account of the financial difficulties of the defendant's establishment and operation of ○○ Middle School, and borrowed money from the plaintiff (Counterclaim defendant; hereinafter the plaintiff) several times in his name, the plaintiff's bonds (the bonds ordering payment as payment order) against the non-party 1, which became the ground for the assignment order of this case, was caused by the defendant's borrowing of money from the plaintiff's name as joint guarantor. On February 10, 1987, after the assignment order of this case was issued, the court below determined that the above non-party 3, non-party 4, non-party 5, and the non-party 6, who was the representative director of the defendant corporation, was exempted from the above money of this case's transfer to the above defendant's 60.

In comparison with the records, the above fact-finding and judgment of the court below are just, and there is no error of law by misunderstanding the rules of evidence or the legal principles on the assumption of obligation as pointed out in the lawsuit.

2. Article 17 of the Mutual Saving and Finance Company Act provides that the consent of at least 2/3 of all the members or the resolution of the board of directors shall not be deemed to include exemption from liability as a matter of course. According to the agreement concluded on February 10, 1987 as determined by the court below, the agreement was concluded on February 10, 1987 that the above non-party 3 participated as the representative director of the Plaintiff’s credit cooperative, the auditor, and the first shareholder of the Plaintiff’s credit cooperative at the time, and agreed that the above non-party 3 shall be exempted from liability to the Plaintiff’s credit cooperative. Thus, the agreement can be deemed to have obtained the consent of at least 2/3 of all the members of the Plaintiff’s credit cooperative. Thus, there

3. According to the court below's decision, the court below confirmed that although the total amount of the loan in this case was extinguished by the implementation of the agreement on February 10, 1987, the plaintiff paid 2,381,740 won in total from July 1, 1987 to November 11 of the same year to the plaintiff, the court below's decision was just in its purport that the plaintiff gains a profit equivalent to the above amount of money without any legal ground and thereby causes damage to the defendant, and the above non-party 7 did not err in the misapprehension of legal principles as to unjust enrichment as alleged in the ground of appeal.

4. 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 Choi Jae-ho (Presiding Justice)