손해배상(기)
1. The defendant's appeal is dismissed.
2. The costs of appeal shall be borne by the Defendant.
Purport of claim and appeal
[Claim]
1. The court's explanation concerning this case is identical to the reasoning of the judgment of the court of first instance, except for adding the judgment under paragraph (2) below, and thus, citing this in accordance with the main sentence of Article 420 of the Civil Procedure Act.
2. The defendant asserts that if the amount deposited by the defendant to the plaintiff is not recognized as the repayment of embezzlement, the plaintiff benefits without any legal ground. Thus, the plaintiff asserts that the defendant's claim for return of unjust enrichment against the plaintiff and the damage claim of this case against the plaintiff against the plaintiff should be offset against the equal amount.
In a case where the liability for life-to-face was caused by an intentional tort, the obligor cannot set up against the obligee by set-off (Article 496 of the Civil Act). According to the above, the Defendant’s damage liability against the Plaintiff, claiming as a set-off claim, was caused by an intentional tort, such as embezzlement, and therefore, the Defendant cannot set up against the Plaintiff by set-off.
In addition, in the case of so-called unjust enrichment for which one of the parties has paid a certain amount of benefit according to his/her own intent and claiming the return of the benefit on the ground that the payment did not have any legal ground, the burden of proving that there is no legal ground shall be proved to the person who asserts the return of unjust enrichment. In this case, the person who seeks the return of unjust enrichment shall prove that the cause was extinguished due to the invalidation, cancellation, cancellation, etc. of the fact causing the act of payment and that there was no legal ground, together with the so-called erroneous remittance for the same reason as the so-called erroneous remittance made on the
(Supreme Court Decision 2017Da37324 Decided January 24, 2018). Accordingly, the Defendant’s assertion that deposit was made for the repayment of embezzlement money is not recognized, and it can be said that the Plaintiff benefiting without any legal ground.