[손해배상청구사건][고집1948민,209]
Violation of mandatory law and illegal consideration;
The so-called "illegal cause" under Article 708 of the former Civil Code refers to a case where a cause is for the purpose of a violation of the public order and good morals, and an act violating the mandatory law does not necessarily mean an act violating the public order and good morals. Thus, the illegal act does not necessarily mean an illegal cause.
Article 708 of the former Civil Code
Seoul High Court Decision 4293No359 decided Dec. 27, 1960 (Civil Code I Article 746(6)118, 6895)
Plaintiff
Defendant
Seoul District Court of the first instance (4289 Gu residents137)
The original judgment shall be revoked.
The defendant pays 3,300,000 Won to the plaintiff.
The plaintiff's claim is dismissed.
Litigation costs shall be borne by the defendant in the first and second trials.
The Plaintiff’s legal representative sought from April 1, 283 to the full payment of KRW 5 percent per annum with respect to the money of KRW 3,300,000 of the disposition Nos. 1, 2, and 3,000. The Defendant’s legal representative is seeking a decision to dismiss the public prosecution. The Defendant’s legal representative is seeking a decision to dismiss the public prosecution. The method of de facto statement evidence of both parties is identical to that of the original judgment, thereby citing this.
The defendant received 7,00 U.S. dollars from the plaintiff on January 31, 4283 as an agreement to return 7,000 U.S. dollars from the plaintiff until the end of March of the same year, and delivered 20,000 U.S. dollars to the plaintiff upon the agreement to return the US dollars at the time of return from the plaintiff, there is no dispute between the parties. Such a juristic act is null and void in accordance with Article 1 (b) 3 of the U.S. military law and Article 5 of the U.S. military law (the same shall apply even if the plaintiff was the defendant's head of the defendant) (the same is the sale with the defendant's head of the defendant). Since the payment made by both parties based on the void juristic act, mutual unjust enrichment is created, the parties are obligated to return the benefits acquired from each other. However, since the conversion rate of Korea-U.S. dollars is remarkably equivalent to 1 U.S. dollars 500 U.S. dollars, the defendant is not obligated to pay the plaintiff with bad faith to pay 700,0000. dollars.
The defendant asserts that the defendant can not claim the return of this case because he is the payment based on the illegal cause, but Article 708 of the Civil Code provides that the so-called illegal cause is the case where the act of violation of the public order and good morals is for the purpose of violation of the public order and good morals. However, since the act of violation of the mandatory law does not necessarily mean an act of violation of the public order and good customs, it does not necessarily mean an illegal cause. The defendant's assertion that the defendant's act of violation of the mandatory law does not necessarily constitute an illegal cause. The defendant's assertion that the defendant's act of violation of subparagraph 93 of the U.S. military law is in violation
Based on the above reasons, the plaintiff's claim of the principal lawsuit is reasonable, and therefore, it shall be dismissed. The judgment of the court below which has different conclusions is unfair, and the plaintiff's principal case is reasonable. Accordingly, it is so decided as per Disposition by Articles 386, 89, and 95 of the Civil Procedure Act.
Judge Kim Jae-hee (Presiding Judge)