[1] The order of appropriation of performance to expenses, interest, and principal

[2] In a case where the State returned the excess ownership charges to the payer, the order of appropriation of the refund and additional refund charges to the payer

[1] The order of appropriation for payment of expenses, interest, and principal is stipulated in Article 479 of the Civil Code, and Article 476 of the Civil Code does not apply mutatis mutandis to the appropriation for payment of expenses, interest, and principal. Thus, unless there is any special agreement between the parties, the appropriation shall be made in the order of expenses, interest, and principal, and even if the debtor and creditor are not the debtor, the order of appropriation may not be designated unilaterally differently from the above legal order.

[2] The nature of a refund is a kind of unjust enrichment, and additional dues for refund calculated by multiplying the refund by the specified ratio during the period from the payment date to the actual payment date is interest on unjust enrichment. Thus, additional dues for refund is not independent from the refund, but has the nature of legal interest on bonds and obligations of refund. Thus, if the State refunds excess ownership charges to the payer under the former Act on Ownership of the Housing Site (repealed by Law No. 5571 of September 1998), which was paid by the State, the amount is insufficient for the State to fully meet the refund and additional dues, the additional dues for refund corresponding to the interest on the refund shall be appropriated first in accordance with the legal principles on satisfaction of payment under the Civil Act, and if it is insufficient for the State to pay the refund to the payer, the State, who is the payer, to pay the refund, may not set the order of payment at its own discretion and apply it to the repayment of the principal

[1] Articles 476 and 479 of the Civil Act / [2] Articles 479 and 741 of the Civil Act, Articles 27 and 37 of the former Act on the Ownership of Housing Site (repealed by Act No. 5571 of September 19, 198), Article 32 (4) of the Enforcement Decree of the former Act on the Ownership of Housing Site (repealed by Presidential Decree No. 15899 of September 25, 1998), Article 52 of the Framework Act on National Taxes

[1] Supreme Court Decision 80Da3009 decided May 26, 1981 (Gong1981, 13982), Supreme Court Decision 90Da7262 decided Nov. 9, 1990 (Gong1991, 39), Supreme Court Decision 97Da48562 decided Apr. 24, 1998 (2) / [2] Supreme Court en banc Decision 88Nu6436 decided Jun. 15, 198 (Gong1989, 1096) (Gong200Du7520 decided Oct. 26, 2001) (Gong201Ha, 2594)

Hyundai Construction Co., Ltd. (Law Firm Pacific, Attorneys Kim Tae-chul et al., Counsel for the defendant-appellant)

Korea

Seoul High Court Decision 2000Na36899 delivered on August 21, 2001

Of the lower judgment, the part of the lower judgment against the Plaintiff corresponding to the difference between 5% per annum from November 14, 1999 to August 21, 2001 and 10.95% per annum for which the Plaintiff seeks payment from 4,332,040,279 won, which the lower court ordered payment, shall be reversed, and that part of the case shall be remanded to the Seoul High Court.

1. According to the reasoning of the lower judgment, the lower court determined that: (a) the Plaintiff was obligated to pay KRW 2,263,37,560 and KRW 70,407 and KRW 70,085 on November 1, 1993 as the charges for excess ownership of the housing site under the former Act (repealed by Act No. 5571, Sept. 19, 198); (b) KRW 5,182,560,850 and KRW 350,830 on October 31, 1994; and (c) the Defendant was obligated to pay the Plaintiff KRW 30,97,00 for the total amount of KRW 2,263,377,560 and KRW 97,306,397,97,970 and KRW 97,97,3050 for each of the above charges; and (d) the Defendant was obligated to pay the above charges to the Plaintiff during the period of KRW 15060,307,3097.

2. Judgment on the grounds of appeal

However, the lower court’s determination that the Defendant paid the Plaintiff on November 13, 1999 KRW 7,669,012,40 as the principal of the refund is difficult to accept.

With respect to the appropriation of performance to the expenses, interest, and principal, Article 479 of the Civil Act is stipulated in the order of appropriation, and Article 476 of the same Act does not apply mutatis mutandis to the appropriation of payment for designated performance. Therefore, barring any special agreement between the parties concerned, such appropriation shall be made in the order of expenses, interest, and principal. The debtor and creditor may not designate the order of appropriation unilaterally differently from the above legal order (see, e.g., Supreme Court Decisions 80Da3009, May 26, 1981; 90Da7262, Nov. 9, 190).

However, according to the court below's decision, the amount that the defendant returned to the plaintiff on November 13, 1999 is merely the total amount of the amount already paid by the plaintiff and thus, it is clear that the amount alone is not sufficient to meet the plaintiff's total amount of refund and additional dues for refund. Meanwhile, the nature of the refund is a kind of unjust enrichment (see, e.g., Supreme Court en banc Decision 88Nu6436, Jun. 15, 1989; 2000Du7520, Oct. 26, 2001); additional dues calculated by multiplying the refund amount by the specified ratio from the date of the payment to the actual payment date are interest on unjust enrichment; therefore, additional dues are not independent of the refund amount; therefore, in light of the above legal principles, the plaintiff's arbitrary repayment of the refund amount is not a legal interest on the claim and obligation, and thus, it cannot be appropriated in the order of repayment of the principal under the Civil Act.

Therefore, while finding that the defendant returned the above amount to the plaintiff on November 13, 1999 as the original of the above amount of the refund, the court below rejected part of the plaintiff's claim on the premise that the amount paid to the plaintiff was fully repaid as the original amount of the refund, which is ultimately erroneous in the misapprehension of the rules of evidence, or by failing to exhaust all necessary deliberations as to the remainder of the payment for repayment, which affected the conclusion of the judgment. Thus, the ground of appeal pointing this out is with merit.

In addition, according to the records, the plaintiff's appeal of this case is an appeal of this case, and it is reasonable to view that the court below's appeal of this case should be applied 10.95% per annum, which is the statutory interest rate for additional dues, for the period from November 14, 1999 to August 21, 2001, which is the date of the decision of the court below, from November 14, 2009 to the period from August 21, 2001, which is the date of the decision of the court below. (See the petition of appeal of this Chapter 305 and the letter of stamp correction of this Chapter 312). The part to be reversed among the judgment of the court below shall be limited to

3. Therefore, the part of the judgment below against the plaintiff is reversed, and that part of the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Song Jin-hun (Presiding Justice)