[1] In a case where the illegality of the beneficiary in the illegal consideration is significantly larger than that of the provider, and the illegality of the provider is weak, whether the provider is allowed to claim the return of unjust enrichment (affirmative)

[2] The case holding that the crime of embezzlement is established on the ground that the illegality of Maternity is significantly larger than that of Maternity, in light of all the circumstances, in a case where the Maternity of Maternity has been kept in custody of the Maternity received between the Maternity and the Maternity and the agreement to distribute the Maternity was made

[1] According to Article 746 of the Civil Code, if there is benefit arising from an illegal cause, and if such illegal cause exists in the provider, it is in principle that the beneficiary can not seek the return of illegal consideration, and the provider cannot seek the return of illegal consideration even if the illegality of the beneficiary is significantly larger than that of the provider. However, if the provider's claim for return is not permitted even if the illegality of the beneficiary is significantly weak than that of the provider, it goes against the fairness and the principle of good faith. In such a case, the application of the main sentence of Article 746 of the Civil Code is excluded, thereby allowing the provider to claim the return.

[2] The case holding that the crime of embezzlement is established on the ground that since the illegality of Maternity is considerably larger than the illegality of Maternity, in case where the Maternity of Maternity is still larger than the illegality of Maternity, in light of the social status of Maternity and Maternity, the detailed contents of the agreement leading to the agreement, and the nature of benefits, etc., in a case where the Maternity of Maternity received between Matern and the Maternity is continuously owned by Maternity

[1] Article 746 of the Civil Code / [2] Article 355 of the Criminal Code, Article 746 of the Civil Code

[1] Supreme Court Decision 93Da12947 delivered on December 10, 1993 (Gong1994Sang, 345), Supreme Court Decision 95Da49530, 49547 delivered on October 24, 1997 (Gong1997Ha, 3570)

Defendant

Prosecutor

Incheon District Court Decision 98No741 delivered on June 11, 1998

The non-guilty part of the judgment below shall be reversed, and that part of the case shall be remanded to the Incheon District Court Panel Division.

We examine the grounds of appeal.

According to the reasoning of the judgment below, the court below held that the crime of embezzlement of Article 355 (1) of the Criminal Act is established by the person who keeps another's property by illegally acquiring it from the victim's wife on May 1, 1994, where the victim and the victim agreed to do so against the customer and distribute half of the amount received in return, and then, from September 30 of the same year, the victim did not return it to the victim without returning it to the victim, and embezzlement of half of the sum of 2,75 million won received from the victim's customer who did so from the victim's business until September 30 of the same year, but because the victim did not return it to the victim's daily living expenses of the defendant and the non-indicted 1, it constitutes "the crime of embezzlement of the defendant's property" of Article 355 (1) of the Criminal Act is established by the defendant's act of selling it from the other party's business, and thus, the victim's unlawful act of selling it to the victim and the non-indicted 16 of the Civil Act.

According to Article 746 of the Civil Act, if there is benefit arising from an illegal cause, and the illegal cause exists on the part of the beneficiary, the beneficiary's illegal cause, the degree of the illegal cause, and the illegality of the beneficiary cannot be claimed for the return of illegal cause. However, if the illegality of the beneficiary is significantly larger than that of the payer, and the payer's claim for the return of illegal cause is not allowed even if the illegality of the payer is weak, it violates the principle of fairness and good faith. In such a case, the application of the main sentence of Article 746 of the Civil Act is excluded, and it is reasonable to interpret that the payer's claim for return is allowed (see, e.g., Supreme Court Decision 95Da49530, 49547, Oct. 24, 1997).

As in the instant case, the agreement that the accused, as the principal in the instant case, provided a business establishment so that the victim of the leaps may do so against the customer, and the victim of the leaps keep the leles in custody of the defendant who received from the other party of the leaps. Accordingly, delivery of the victim's leaps to the defendant based on the agreement shall be deemed to be the case where the victim provided the benefits for illegal reasons. However, according to the records, the defendant, by finding the victim who was employed as a multiple employee, actively recommended the victim to do the leapsing act at his own business, the victim made the above agreement between the defendant and the victim to do the leaps, and the defendant was engaged in the former administrative affairs, while he was engaged in his business, and the victim took considerable profits from his leles, such as the victim, etc. at his own business establishment, and the victim's act of selling the leaps to the defendant's living with her husband, and thus, the victim still constitutes the victim's social status.

Nevertheless, the court below found the defendant not guilty of the charge of embezzlement of this case as to half of the picture in which the victim had kept the defendant for the above reasons. The court below erred in the misapprehension of legal principles as to embezzlement and illegal consideration, which affected the conclusion of the judgment, and the ground of appeal pointing this out is with merit.

Therefore, the non-guilty part of the judgment below is reversed, and that part of the case is remanded to the court below. It is so decided as per Disposition by the assent of all participating Justices.

Justices Lee In-hee (Presiding Justice)