[부당이득금청구사건][고집1972민(1),423]
Nullification Judgment and Unjust Enrichment
The plaintiff borrowed and transferred a counterfeited promissory note to another person, which is the defendant's children, and deposited KRW 550,00 in the defendant's bank account for the approval of the above promissory note, and if the money was withdrawn from the above bank account of the defendant, the above "A" had withdrawn the above money under the circumstances that only is possible by the defendant's check or promissory note under the name of the defendant. Meanwhile, the defendant was subject to the judgment of nullification of the above promissory note. Thus, the defendant's bank refused to pay the above amount to the holder of the above promissory note, and thus, if the plaintiff has been forced to reimburse the above holder of the above amount, the defendant must return the unjust enrichment to the plaintiff.
Article 741 of the Civil Act
Plaintiff
Defendant
Busan District Court (71 Gohap1230)
The original judgment shall be revoked.
The defendant shall pay to the plaintiff 50,000 won with 5% interest per annum from August 29, 1971 to the date of full payment.
The plaintiff's remaining claims are dismissed.
All the costs of lawsuit shall be borne by the defendant in the first and second instances.
A provisional execution may be effected only under the above paragraph (2).
The original judgment shall be revoked.
The defendant shall pay to the plaintiff 50,000 won with an annual interest rate of 5% from May 4, 1971 to the date of full payment.
The costs of lawsuit shall be borne by the defendant in both the first and second trials and a declaration of provisional execution.
If Gap evidence Nos. 1 and Eul evidence Nos. 1-2 without dispute over the establishment of the portion of the bill Nos. 3 and Eul's evidence Nos. 3 presumed to be the whole document, the plaintiff combined the whole testimony and arguments of the non-party Nos. 1 and 2 with each of the non-party No. 3 known to the defendant on March 2, 1971, the plaintiff refused to pay 570,000 won at the face value of the defendant's bonds under the name of the non-party No. 3 who was known to be counterfeited by the defendant on May 2, 1971, and the place of payment of the bill No. 1 to Busan District Court for the purpose of approval of the above bill, and the plaintiff refused to pay 70,000 won to the non-party No. 1 for the above non-party No. 3's non-party No. 50,000 won on May 3, 197.
Therefore, according to the above facts of recognition, the defendant deposited the above amount of 550,000 won into the defendant's account of the above bank, and the defendant shall return the profit to the plaintiff without any legal ground. Thus, the defendant holds a deposit slip and paid it to the plaintiff at the time that the defendant paid it to the non-party 3, and there is no objection to the fact that the defendant paid it to the plaintiff, so there is no error in the defendant's claim and there is no profit to the defendant. Thus, according to the non-party 4's testimony of the defendant's creditor bank account, it can be known that it is possible to withdraw the money from the defendant's creditor bank account of this case only by the defendant's check or promissory note, so it cannot be viewed that the non-party 3 collected the money of this case deposited in the defendant's account by the deposit account book, and it cannot be viewed that the non-party 3 or the non-party's right to claim damages against the plaintiff's unlawful exercise of the above right to claim damages against the non-party 3 or the above bill.
Therefore, from August 29, 1971 to August 29, 1971, it is obvious that the defendant is the next day of the above 550,000 won and the next day of the above gusheeting to the plaintiff (the plaintiff claimed damages for delay from the next day of the payment of the above money, but there is no evidence to acknowledge that the defendant is a malicious beneficiary, and thus, the plaintiff is bound to pay damages for delay in civil affairs at the rate of 5% per annum from the day of full payment until the day of full payment. Therefore, the plaintiff's claim for delay is justified within the above recognition scope and it is dismissed. The judgment of the court below is unfair, and the plaintiff's appeal is justified, and it is so revoked pursuant to Article 386 of the Civil Procedure Act, and with respect to the burden of litigation costs, Article 96, Article 92, Article 89 of the Civil Procedure Act and Article 199 of the provisional execution declaration, and it is so decided as per Disposition by the court below.
Judges Lee Jung-gu (Presiding Judge)