[1] Meaning of “malicious” under Article 748(2) of the Civil Act, and whether only aware of the fact that constitutes the requirement to return unjust enrichment can be seen as “a malicious beneficiary” (negative)

[2] Where an order of seizure and collection has been issued for a claim, whether the obligor loses the standing to file a performance lawsuit against the claim subject to seizure (affirmative), and whether the effect of seizure of the claim extends to the interest or delay damages already incurred before the seizure takes effect (negative)

[1] Articles 748(2) and 749 of the Civil Act / [2] Article 51 of the Civil Procedure Act, Articles 227(3) and 229(2) of the Civil Execution Act

[1] Supreme Court Decision 2009Da24187, 24194 Decided January 28, 2010 (Gong2010Sang, 398) / [2] Supreme Court Decision 2007Da60417 Decided September 25, 2008, Supreme Court Decision 2009Da85717 Decided February 25, 2010

Plaintiff (Attorney Seo-won, Counsel for the plaintiff-appellant)

Defendant (Attorney Gyeong-soo, Counsel for defendant-appellant)

Seoul High Court Decision 2011Na59171 decided November 21, 2012

The part of the judgment of the court below against the plaintiff is reversed, and that part of the case is remanded to the Seoul High Court.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. As to the assertion on the commencement date of statutory interest

Article 748(2) of the Civil Act provides that a malicious beneficiary shall compensate for any loss, if he/she returns the profit with interest added thereto, and Article 749(1) of the same Act provides that if the beneficiary knows that there is no legal ground after receiving the profit, he/she is liable to return the profit as a malicious beneficiary from that time, and Article 749(2) of the same Act provides that if a bona fide beneficiary loses the profit, he/she shall be deemed a bona fide beneficiary at the time of filing the lawsuit. The term "faith" here refers to recognizing that his/her profit has no legal ground, apart from cases where a bona fide beneficiary is deemed a bona fide beneficiary under Article 749(2) of the Civil Act, and it is insufficient to recognize that there is no legal ground for holding the profit, namely, a fact meeting the requirements for return of unjust enrichment (see, e.g., Supreme Court Decision 2009Da24187, 24194, Jan. 28, 2010).

The lower court rejected the Plaintiff’s claim for legal interest payment after the above point, on the ground that the land transaction permission application against the land No. 1 was rejected on December 6, 2007 (the date of the lower judgment’s judgment on December 6, 2008) but there is no evidence to acknowledge that the Defendant had known that the possession of the down payment, which was paid by the Plaintiff, was not a legal cause due to the entirety of the instant sales contract being treated as null and void, as a whole, and that the Plaintiff’s claim for payment of the down payment after the above point should be rejected. However, in the case where a bona fide beneficiary was determined to have lost even if it was a bona fide beneficiary, the Defendant who was against the instant lawsuit should return the legal interest on the down payment as a malicious beneficiary from May 20, 2010

In light of the aforementioned legal principles and records, the court below is just in rejecting the Plaintiff’s assertion that the Defendant was liable for return of profits as a malicious beneficiary from December 6, 2007, for which an application for land transaction permission against the land transaction permission against the land No. 1 was rejected, and there is no error of law as

However, it is difficult to accept the judgment of the court below that the defendant has a duty to return interest as a malicious beneficiary only after May 20, 2010, which is the date of the lawsuit in this case, for the following reasons.

According to the facts established by the court below, upon non-permission on December 6, 2007, the Plaintiff et al., the purchaser of the instant sales contract, decided to waive the entire purchase of the land, and the Defendant returned the permission for the land transaction contract for the land Nos. 2 and 3 which are the remainder of the instant sales contract under the joint name with the purchaser on February 19, 2008. Thus, the Defendant knew that the instant sales contract was finally invalidated from February 19, 2008 at the latest.

Nevertheless, the court below did not determine whether the defendant was a malicious beneficiary from February 19, 2008 and determined that the defendant is liable to pay interest only after the lawsuit of this case was instituted. In this regard, the court below erred by misapprehending the legal principles on the starting point of the interest to be returned together with unjust enrichment, which affected the conclusion of the judgment. The ground of appeal pointing this out has merit.

2. As to the argument regarding the scope of validity of a seizure and collection order

If a seizure and collection order is issued on a claim, only the collection creditor may file a lawsuit for performance against the garnishee, and the debtor loses the standing to file a performance lawsuit against the claim subject to seizure (see, e.g., Supreme Court Decisions 2007Da60417, Sept. 25, 2008; 2009Da85717, Feb. 25, 2010). Meanwhile, the seizure order becomes effective upon delivery to the garnishee (Article 227(3) of the Civil Execution Act). Since the effect of the seizure order is limited to the interest or delay damages arising after the seizure becomes effective, it naturally extends to the interest or delay damages arising after the seizure becomes effective, but it does not extend to the interest or delay damages arising before the seizure becomes effective.

According to the reasoning of the judgment below, while the court below determined that the defendant is obligated to pay the plaintiff the legal interest for unjust enrichment of KRW 750 million and its interest from May 20, 2010, the court below rejected the part of KRW 524,770,463 in total, which was seized and collected by Nonparty 1 and Nonparty 2, on the ground that the plaintiff was disqualified as a party to a claim performance, and thus, was unlawful. The defendant is obligated to pay damages for delay from May 20, 2010, except for the plaintiff, to the plaintiff at KRW 225,229,537, and damages for delay from May 20, 2010.

However, according to the above legal principles, the effect of the seizure and collection order of the non-party 1 and the non-party 2 is limited to the interest or delay damages incurred after each seizure took effect, and it does not extend to the interest, etc. accrued before that seizure. Therefore, it is reasonable for the court below to dismiss the claim for the interest or delay damages incurred after each seizure takes effect. However, the court below decided that the plaintiff lost the standing to request the execution of the interest accrued before the effective effect of each seizure was dismissed. The ground for appeal pointing this out is with merit.

3. Conclusion

Of the part of the judgment below against the plaintiff, the part concerning interest and delay damages shall be reversed, and this part of the case shall be 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

Justices Kim Yong-deok (Presiding Justice)