[1] The time when a deposit contract is established in case where a deposit is deposited in the per share sheet

[2] The party concerned with unjust enrichment in a case where the payment bank requested an extension of the settlement time after the lapse of the time to notify the outstanding bill, but the presentation bank paid the amount of the check upon the request of the depositor who deposited the outstanding bill without complying therewith, and the check was defaulted

[1] Article 5 (1) 2 of the General Terms and Conditions for Bank Receipt Transactions applicable to a savings deposit contract on the amount per unit amount provides that "where the customer deposits in securities, the bank shall return the securities to exchange and verify the settlement with the maturity of returning the securities." This means that where the bank deposits in securities, such as the check of the number of units to be paid at another store, it shall be deemed that the deposit contract has been concluded when collecting the amount and confirming the settlement at the store where the exchange is returned, and it shall not be deemed that the deposit contract has been established unless the notice of default was given until the due date of returning the securities was returned to the store which requested collection, regardless of whether the securities were collected normally or due to dishonor at the place of payment.

[2] Where a bank which received a deposit in the face-to-face swap through a clearing-house exchange process fails to notify the bank of the default of payment until the time to notify the outstanding bill under the clearing-house agreement, and the bank is unable to refund the check money to the bank which presented the above check money, and thus, it pays the amount equivalent to the above check money in response to a depositor's request for withdrawal of deposit which deposited the check money, the bank which received a face-to-face swap and received a request for collection of the check money in accordance with the clearing-house agreement and the Framework Agreement on Transactions at the Bank, whose payment is lawful, and the bank cannot be deemed to have acquired a claim for the refund of unjust enrichment from the depositor's bank because it was not entitled to claim the refund of the check money from the depositor's bank as a result of the receipt of the check money in the face-to-face swap agreement. On the contrary, the bank cannot claim the refund of unjust enrichment from the depositor's bank as a result of the presentation of the above check money in the settlement-to-face exchange relationship.

[1] Articles 111, 532, and 702 of the Civil Act / [2] Article 741 of the Civil Act

[1] [2] Supreme Court Decision 95Da9754, 9761 decided Jun. 16, 1995 (Gong1995Ha, 2508) / [1] Supreme Court Decision 86Meu1559 decided May 26, 1987 (Gong1987, 1056) (Gong190, 1238) decided May 8, 1990

Seoul Bank (Seoul Trust Bank Co., Ltd., Ltd., Counsel for the plaintiff-appellant)

[Judgment of the court below]

Seoul High Court Decision 95Na26232 delivered on November 30, 1995

The appeal is dismissed. The costs of appeal are assessed against the plaintiff.

We examine the grounds of appeal.

1. Basic facts

The facts duly established by the court below based on the macroscopic evidence are as follows.

The defendant bank's Sung-dong branch (hereinafter the defendant bank's above 4: the non-party 1's bank's bank's non-party 1's bank's non-party 1', par value 250,000,00, and issuance date's 31. The non-party 4's bank's bank's non-party 1's bank's bank's deposit account at the above non-party 1's bank's bank's 4's bank's bank's 4th bank's bank's 4th bank's bank's 4th bank's 10th bank's 10th bank's 4th bank's 10th bank's 14th bank's 4th bank's 14th bank's 14th bank's 14th bank's 10th bank's 14th bank's 14th bank's 5th bank's 10th bank's 4th bank's 1 bank's bank's 1.

2. As to the grounds of appeal as to whether there exists a practice receiving notice of unpaid payment by the time when the extension of settlement time is requested between banks.

The court below rejected the defendant bank's assertion that there is a practice to receive the notice of unpaid bills by the extended time of payment until 14:50 days a day after the Seoul Exchange Organization's receipt of a request for the extension of settlement time by the extended time, and on the contrary, the bank participating in the Seoul Exchange Organization's opinion that the Seoul Bank should complete the payment time within 20 minutes a notice of outstanding bills as stipulated in the Seoul Exchange Organization's Rules for prompt settlement of bills on March 13, 1987 (14:30 days a day, 13:00 days a day, and 13:00 days a day). The court below rejected the notice of the court below's determination on the ground that the notice of outstanding bills was not in violation of the rules of evidence that the bank did not receive the notice of unpaid bills by the extended time of payment time after the expiration of the above notice time, and that it did not err in the misapprehension of the rules of evidence as to the notice of unpaid bills since the bank's receipt of the notice of unpaid bills by the due date of payment.

3. As to the ground of appeal that there is an error in interpreting and applying the Act on the Existence of Benefits of Defendant Bank

A. Interpretation of the basic terms and conditions of bank receiving transactions

Article 5(1)2 of the General Terms and Conditions for Bank Receipt Transactions (No. 3-1, No. 50 pages of the record) applicable to the Savings Deposit Agreement between the above non-party 1 and the defendant bank (the Deposit Contract in this case) provides that the term "where the customer deposits the securities in securities, the bank is merely the time when it returns the securities exchange and confirms the settlement." The meaning of the above provision is that where the securities are deposited in securities, such as the check of the number of units to be paid at another store, the bank shall be deemed to have entered into the deposit contract when it collects the face value from the place of payment and confirms the settlement at the place of payment, regardless of whether the securities were normally collected or defaulted and not collected at the place of payment, it shall not be deemed that the deposit contract was established without any condition unless the notice of default was given until the date of returning the securities to the store that requested collection (see Supreme Court Decision 9Da6475, Jun. 196, 195).

Therefore, according to the facts duly admitted by the court below, so long as the above non-party 1 deposited in the savings account of the defendant bank was returned to the exchange settlement by the defendant bank and collected by the plaintiff bank, which is the payment bank, due to the default of collection, the deposit contract of this case was not established. Thus, the above non-party 1 withdraws the amount equivalent to the face value of the cash of this case from the above savings account of the defendant bank to the savings account of the defendant bank and replaced it with the bank money trust account of the same person without any legal cause.

B. The claimant for return of unjust enrichment against the above non-party 1

However, according to the Seoul Bills of Exchange and Promissory Notes (amended by Presidential Decree No. 1994, Sep. 1, 1994; hereinafter the same), the exchange settlement at the Seoul Bills of Exchange and Promissory Notes (hereinafter the same) shall be (1) if a bank participating in the exchange submits to the Seoul Bills of Exchange and Promissory Notes (hereinafter referred to as “B”) a bill, check, or certificate deposited at each participating bank within 2 hours and 30 minutes after the end of its business on the day before the date of exchange (Article 30(1). The Seoul Bills of Exchange and Promissory Notes shall include a sum of the face value payable to the counterpart bank by each participating bank and then settle the difference at an equal amount. The balance shall be settled as a lending settlement at the current account at the Bank in the Bank of Korea (Article 47), and (2) each payment bank shall receive 2 hours and 30 minutes prior to the commencement of its business (Article 42); and (3) if a cause for settlement is not presented by a customer, it shall be returned to the Bank by directly presenting the bill.

Meanwhile, Article 68(1) of the Code provides that "In order to facilitate exchange and settlement of a clearing house in which a large quantity of bills are exchanged between participating banks and to maintain order in financial transactions, the time for returning a bill shall be until the day of exchange, but the day shall be two hours after the end of the business hours." Article 68(2) of the same Code provides that "In spite of the time for returning a bill in arrears referred to in paragraph (0) of the same Article, the bank that pays the bill in exchange shall notify the bank of the fact of the receipt of the bill in exchange for the bill that has not been settled, and the bank that has received the bill in exchange shall not return the bill in exchange for the bill that has not been notified until two hours before the end of the business hours of exchange (16:30) and (b) Saturday: 13:30 minutes before the end of the business hours of exchange."

Therefore, even if a bill of exchange is not notified by the time when the notice of outstanding bills was given as above, it cannot be returned by the paying bank even if the bill was later settled, and thus, the paying bank cannot recover the settlement fund of the bill. Therefore, since the presenting bank is the result of receiving the payment of the bill with the settlement fund, there is no damage in the case of paying the deposit equivalent to the amount of the bill. Thus, even if the depositing bank was paid the deposit to the depositing bank, even if the deposited bill was not collected, and even if it received the payment of the amount equivalent to the amount of the bill and obtained profits without any legal cause, the presenting bank does not have the right to claim the return of its profits to the depositing bank, as long as it did not incur any damage.

In this case, according to the facts duly admitted by the court below, even if the defendant bank, which is the presenting bank, actually collected the check of this case and did not establish a deposit by the check, the bank, as the result of the collection of the check through the process of the exchange of the Seoul Bills of Exchange and Promissory Notes, did not notify the payment of the default to the defendant bank until the time of notice of outstanding bills as stipulated in the Seoul Bills of Exchange and Promissory Notes Exchange Agreement, and the check became cashed and the above check became cashed. Thus, the above non-party 1, who deposited the check of this case, paid the above amount equivalent to the above check to the above non-party 1 in response to the claim for withdrawal of deposit, and the payment of the above amount is guaranteed as the execution of business conducted by the defendant bank, which was requested to collect the check of this case, based on the collection and settlement of the check in accordance with the Seoul Bills of Exchange and Basic Terms of Exchange and Exchange Agreement, and since the payment of the amount was made based on the plaintiff's contribution, it cannot be said that the defendant bank suffered any damage.

On the contrary, the Plaintiff bank could not return the check to the Defendant bank despite the fact that the check was not actually collected, thereby causing losses equivalent to the settlement funds. However, in relation to the Defendant bank, as seen above, the Defendant bank cannot seek the return of the claim for return of unjust enrichment against the Defendant bank unless the Defendant bank has a claim for return of unjust enrichment against Nonparty 1. However, in relation to the above Nonparty 1 as the payer of the check, even though the check deposited with the Defendant bank was not actually collected, even if the deposit contract was not established because the said check was not actually collected, the Plaintiff bank, the payer of the above default check, was unable to return it to the Defendant bank pursuant to Article 68 (1) and (2) of the above agreement, and as a result, it was impossible to recover the settlement funds because the Plaintiff bank, which was the payer of the above default check, was unable to return it to the Defendant bank. Thus, as long as the above check was paid by the Defendant bank with the payment of the check funds, profits equivalent to the above amount of the check funds that was not legally attributable to the Plaintiff bank’s profit.

Therefore, the plaintiff bank can directly seek the return of unjust enrichment equivalent to the above check amount from the above non-party 1, and it cannot seek the return of unjust enrichment from the defendant bank.

C. Therefore, the court below's decision to the effect that the defendant bank did not incur an obligation for return of unjust enrichment since the defendant bank did not receive a notice of unsettlement from the plaintiff bank, which was the payment bank until the time of notice of the outstanding bill (as of January 31, 1994) and received a collection settlement amount from the exchange difference from the bank's office of the Bank of Korea, as long as the collection settlement was confirmed normally. Accordingly, the deposit contract amount equivalent to the current share amount between the defendant bank and the above non-party 1 was established. Accordingly, the decision to the effect that the defendant bank paid the deposit amount to the above non-party 1, who was the deposit owner, was justifiable because the defendant bank paid the deposit amount to the above non-party 1, which is the deposit owner, was unlawful since it erred in the misapprehension of legal principles as to the time of establishment of the deposit contract in the case of deposits in the current share sheet, but it was justified in the conclusion of unjust conclusion that the obligation for return of unjust enrichment

4. As to the grounds of appeal regarding the establishment of tort by Defendant Bank

According to the facts duly established by the court below, since the above non-party 1's request for the extension of the settlement time of the check was made after the time to notify outstanding bills under the above Seoul Bills of Exchange and Promissory Notes and the withdrawal of deposits in the check of this case, the above non-party 1's request was made by the defendant bank for the extension of settlement time. Thus, even if the check was not accepted by the extension of settlement time, and the above check cannot be returned to the defendant bank pursuant to the above Seoul Bills of Exchange and Promissory Notes Rules, since the defendant bank's employees paid the above non-party 1 the deposit equivalent to the above check, it is just in accordance with the above Seoul Bills of Exchange and Promissory Notes, and it cannot constitute tort.

In addition, the employee of the Defendant Bank did not know that the check was already defaulted at the time when the said employee paid a deposit equivalent to the above amount to Nonparty 1, but merely received a request from the Plaintiff Bank for the extension of settlement time at the time when the notice of outstanding bills stipulated in the Seoul Bills Exchange Organization Regulations was past, and it cannot be said that the act of the Defendant Bank, which performed duties in accordance with the above regulations, violates the good faith principle or constitutes abuse of rights

The court below's decision to the same purport is just and there is no violation of law as the theory of lawsuit. The argument is without merit.

5. As to the ground of appeal that there is an error in interpreting the law on the violation of Article 71 of the above Seoul Bills Exchange Organization Rules

According to the records, Article 71 of the above Seoul Bills Exchange Agreement provides that the bank which received the return of non-payment bill 0b shall not refuse the payment of non-payment of non-payment of non-payment bill on the ground that the grounds for non-payment are unreasonable. However, the bank which received the return of non-payment bill in accordance with the above Code refers to the bank that received the return of non-payment bill by the time when the notice of non-payment bill is given under the above Code. Thus, the defendant bank is not obligated to pay the non-payment bill Daejeon of this case to the plaintiff bank in accordance with Article 71 of the above Seoul Bills Exchange Agreement.

The court below's decision to the same purport is just and there is no violation of law as the theory of lawsuit. The argument is without merit.

6. As to the ground of appeal on mistake of facts as to the agreement with Nonparty 1 and Plaintiff bank employees

According to the reasoning of the judgment below, it is clear that the court below did not recognize that the above non-party 1, who deposited with the Plaintiff bank as the check number of units, agreed on the claim for return of unjust enrichment of the Plaintiff bank of this case or the extinction of the claim for damages, and therefore, it is not reasonable to discuss the purport of disputing the above fact-finding on the premise that there was a fact

7. 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 Kim Jong-sik (Presiding Justice)