[1] The meaning of illegal cause in illegal consideration under the Civil Act

[2] In a case where the director of a pharmacy in charge of the selection and purchase of medicines at a hospital received money from a pharmaceutical company in return for the provision of medicines on behalf of the hospital and received money in return for the provision of medicines, the case holding that the above money constitutes embezzlement on the grounds that the hospital did not constitute illegal consideration to the head of the pharmacy, and thus still has

[1] Article 746 of the Civil Code, Article 355 (1) of the Criminal Code / [2] Articles 355 (1) and 356 of the Criminal Code, Article 746 of the Civil Code

[1] Supreme Court Decision 99Do275 delivered on June 11, 1999 (199Ha, 1451)

Defendant

Prosecutor

Law Firm Seom, Attorney Yang-soo

Gwangju District Court Decision 2006No1465 Decided March 14, 2007

The judgment of the court below is reversed, and the case is remanded to Gwangju District Court Panel Division.

We examine the grounds of appeal.

The court below acknowledged that the defendant was working as the head of the pharmacy and the head of the medicine department in charge of the selection, purchase, and management of the drugs used at the above hospital as a woman belonging to the KIcheon branch of the KIcheon-si (name omitted), and was engaged in the business of receiving 5% or 20% of the sales of the drugs from the pharmaceutical company supplying the drugs to the above hospital under the name of donation, and embezzled 13.6 million won of the total of 13.6 million won received from six pharmaceutical companies such as GIG, etc. under the name of donation. The court below held that the above case did not constitute the crime of embezzlement since the KIG provided the above donations to the above hospital over several years in proportion to the sales of the drugs in return for the supply of the drugs by the pharmaceutical company to the above hospital. The court below held that the above hospital did not constitute the crime of embezzlement even if it did not return the money to the defendant because it did not constitute the crime of embezzlement because it did not return the money to the above individual.

However, we cannot accept the above judgment of the court below for the following reasons.

Article 746 of the Civil Act provides that a person who pays property or provides labor for an illegal cause shall not claim the return of such benefit. The payment means that a person who pays benefits cannot claim the return of unjust enrichment from the other party on the ground that the act is legally null and void, and that the ownership of the given goods belongs to the other party to whom the benefit was paid, and thus, the ownership of the given goods is attributed to the other party to whom the benefit was paid. Here, the term "illegal cause" means not only the case where the act causing the act is contrary to good morals and other social order, but also the case where the contents of the rights and obligations which are the object of the juristic act violate good morals and other social order, and even though the contents of the juristic act are not contrary to social order, it cannot be seen that the act constitutes illegal consideration even if the act becomes contrary to social order or the motive of the juristic act known to the other party is contrary to social order (see, e.g., Supreme Court Decisions 9Do275, Jun. 11, 199; 2005Do325, etc.).

Nevertheless, the lower court erred by misapprehending the legal doctrine on illegal consideration and embezzlement, which affected the conclusion of the judgment that the Defendant’s storage of donations from pharmaceutical companies on behalf of the hospital constituted illegal consideration, and thus, constitutes a case where the instant facts charged are not committed on the ground that such donations fall under illegal consideration.

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

Justices Ahn Dai-hee (Presiding Justice)