손해배상(기)
2017Na8343 Compensation for damages
A
B
Jeonju District Court Decision 2016Kadan10808 Decided June 13, 2017
June 7, 2018
July 19, 2018
1. Revocation of a judgment of the first instance;
2. The plaintiff's claim is dismissed.
3. All costs of the lawsuit shall be borne by the Plaintiff.
The judgment of the court of first instance shall be revoked. Alternatively, the defendant shall pay to the plaintiff 35,00,000 won with 5% interest per annum from May 20, 2016 to the delivery date of a copy of the complaint of this case, and 15% interest per annum from the next day to the day of complete payment (the plaintiff filed a claim for compensation for damages caused by the illegal act and the return of unjust enrichment in preliminary case, but each of the above claims is judged on the premise that it is a selective claim with the order of priority because it is not compatible with the law).
1. Facts of recognition;
A. On May 2016, the Plaintiff: (a) sought an explanation from C that “after purchasing and trading apartment sales tickets in Sejong Special Self-Governing City, the market price profits may accrue; and (b) paid C money in the name of the purchase price for apartment sales tickets.”
B. On May 17, 2016 and May 19, 2016, the Plaintiff transferred a total of KRW 35,000,000 to the financial account under the name of the Defendant, designated by C, for the purchase fund for the apartment sale right.
[Reasons for Recognition] Unsatisfy, each entry in Gap evidence 1 to 4 (including virtual number), and the purport of the whole pleadings
2. Determination as to a claim for damages caused by a tort
A. The plaintiff's assertion
C even if the Plaintiff did not have the intent and ability to sell the apartment sale right, the Plaintiff had the intent to commit the fraud by deceiving the Plaintiff, and by receiving 35,000,000,000 from the financial account under the name of the Defendant, and the Defendant took part in C’s fraud by providing the financial account under his own name. Therefore, the Defendant is obliged to pay the Plaintiff 35,00,000,000 as compensation for tort.
B. Determination
Even if C had committed fraud against the Defendant, the evidence alone submitted by the Plaintiff is insufficient to acknowledge that the Defendant participated in C’s fraudulent act, and there is no other evidence to acknowledge it. Therefore, this part of the Plaintiff’s assertion is rejected without examining any further.
3. Determination as to the claim for return of unjust enrichment
A. The plaintiff's assertion
The Plaintiff, without any justifiable reason, remitted the amount of KRW 35,00,000 to the Defendant by mistake without any justifiable reason, thereby unjust enrichment by the Defendant. Therefore, the Defendant is obliged to pay the amount of KRW 35,00,000 to the Plaintiff with unjust enrichment return.
B. Determination
Where contractual performance benefits not only the other party to the contract but also a third party is benefiting from the other party, the other party to the contract who provided the benefit may not claim a return of unjust enrichment directly against the third party in addition to claiming the counter-performance of the contractual performance (see, e.g., Supreme Court Decision 2011Da48568, Nov. 10, 2011).
The Plaintiff’s act of remitting money to the financial account under the name of the Defendant constitutes benefits under a contract with C, and thus, the Plaintiff cannot make a claim for the return of unjust enrichment directly to the Defendant, a third party, regardless of claiming the return in return under a contract with C. Therefore, the Plaintiff’s assertion on this part cannot be accepted.
4. Conclusion
Therefore, the plaintiff's claim shall be dismissed as it is without merit. Since the judgment of the court of first instance is unfair with different conclusions, the judgment of the court of first instance is revoked and the plaintiff's claim is dismissed. It is so decided as per Disposition.
Presiding Judge, Judge and Standing Board
Judges Kim Gin-jin
Judges Park Young-young