In a case where a contract which forms a legal relationship between a abortion and a summary in a contractual relationship for a third party is terminated, whether the abortion can seek the return of the contract against a third party on the grounds of restitution based on termination of the contract or unjust enrichment for the benefit already provided to a third party (negative)

Articles 539, 548, and 741 of the Civil Act

Law Firm Jinc (Attorney Song Jin-jin et al., Counsel for the defendant-appellant)

Kim Young-soo (Attorney Lee Yong-hee, Counsel for defendant-appellant)

Gwangju District Court Decision 2002Na2443, 2450 Decided December 31, 2004

The appeal is dismissed. The costs of appeal are assessed against the plaintiff (Counterclaim defendant).

We examine the grounds of appeal.

1. According to the reasoning of the judgment of the court below, the court below acknowledged the facts of the judgment after compiling the relevant employment evidence, and determined that since the plaintiff (the counter-party defendant; hereinafter referred to as the "Plaintiff") purchased the goods of this case from the exhaustion, and the purchase price paid to the defendant an amount equivalent to the debt owed to the defendant, in lieu of the payment of the purchase price for the exhaustion, and the obligation against the defendant of the exhaustion is extinguished by the plaintiff's payment of the above amount to the defendant as above, the contract on the payment method of the purchase price of this case is invalid by the plaintiff. Thus, since the agreement on the payment method of the purchase price of this case is a relationship between the plaintiff and the plaintiff as a third party (the counter-party relation), the above basic relation (the compensation relation) and the exhaustion and the defendant as the third party are all the above basic relation (the cause relation) between the plaintiff and the defendant, and at the same time, the above agreement constitutes a contract for the third party to have the defendant directly claim the payment against the defendant in accordance with the agreement on the payment method of this case.

According to the records, the fact-finding and decision of the court below is just, and there is no error of law by misconception of facts against the rules of evidence.

2. The court below also rescinded the sales contract of this case on the ground that the right to transfer ownership of the goods of this case had already been acquired as well as that the right to transfer ownership of the goods of this case had been omitted due to the acquisition of ownership of the goods of this case. As to the plaintiff's principal claim that the defendant is obligated to return 26 million won of the sales contract of this case received from the plaintiff as restitution following the cancellation, it shall be deemed that the sales contract of this case was lawfully rescinded because the copy of the principal claim of this case including the declaration of intent to cancel the sales contract of this case was delivered to the seller so long as the contract of this case was lawfully rescinded. However, even if the sales contract of this case which constitutes the basic relationship as above, the plaintiff's all benefits to the defendant are within the relation of claim between the plaintiff as the party to the sales contract of this case and the tenant, which constitutes the basic relationship, and thus, it shall be deemed reasonable to view that the return of unjust enrichment by the plaintiff as the party to the contract of this case and the third party's obligation to return unjust enrichment should not be a summary of the contract.

In a case where a contract which forms the legal relationship between the abortion and the summary in the contractual relationship for a third party is rescinded, the liquidation of the contractual relationship should be done between the abortion and the summary of the contract. Thus, even if the abortion has already been provided to a third party, the abortion may not seek the return of the contractual relationship against the third party on the grounds of restitution according to the termination of the contract or unjust enrichment, barring any special circumstance.

The above judgment of the court below is just in accordance with the legal principles as seen earlier, and there is no error of law by misapprehending the legal principles as to the cancellation of contract in favor of a third party.

3. In the contract for a third party, the third party does not fall under the third party under the proviso of Article 548(1) of the Civil Act which is protected at the time of the termination of the contract, but it does not necessarily require the duty of restoration due to the termination of the contract. In addition, with respect to the unpaid benefits, the abortion may refuse payment to the third party as a defense pursuant to the termination of the contract pursuant to Article 542 of the Civil Act, but the same legal principle shall not apply to cases where the third party seeks restitution due to the termination of the contract for the benefits already paid. Therefore, the court below's decision on the main claim and counterclaim is just in the same purport, and there is no error in the misapprehension of the grounds for appeal by the plaintiff.

4. 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 Lee Hong-hoon (Presiding Justice)