2014Da200695 Compensation for damages

A

Daejeon Metropolitan City Jung-gu

Seoul High Court Decision 201

Daejeon High Court Decision 2012Na10803 Decided December 11, 2013

June 28, 2018

The part of the lower judgment against the Defendant regarding the claim for restitution of unjust enrichment is reversed, and that part of the case is remanded to the Daejeon High Court.

The plaintiff's appeal and the defendant's remaining supplementary appeal are all dismissed.

The grounds of appeal are examined.

1. As to the Defendant’s grounds of incidental appeal

A. Regarding ground of appeal No. 1

Upon citing the judgment of the court of first instance, the court below affirmed the judgment of the court of first instance. (1) The entrusted facilities of this case caused a wide range of defects such as water leakage and rupture phenomenon, drinking water corrosion due to water leakage, drinking water corrosion on a swimming pool, etc. (hereinafter referred to as "the defect of this case"). (2) Such defects are not so minor that the plaintiff, the trustee, can easily easily repair and repair without any particular expenses, but require large repair and repair, and thus, it is impossible for the trustee, who is the truster, to use and profit from the entrusted facilities of this case. (3) The plaintiff, on July 19, 201, declared that the entrustment contract of this case was lawfully terminated on the grounds of the defendant's failure to perform its repair duty, and thus, the entrustment contract of this case was lawfully terminated on July 7, 2011.

Examining the reasoning of the lower judgment in light of the relevant legal principles and records, the lower court’s aforementioned determination is justifiable, and contrary to what is alleged in the grounds of appeal, there were no errors by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, or by misapprehending the legal doctrine

B. Regarding ground of appeal No. 2

1) The term “guarantee insurance” refers to a non-life insurance contract, the purport of which is to take over by the insurer the recovery of the damage to be borne by the insured (beneficiary under a contract) due to a policyholder’s default on an obligation with the insured, and, in formality, the purpose of which is the same as the guarantee contract with the nature of the obligor’s default on obligation, or the effect of which is the same as the guarantee contract. As such, the act of extinguishing the principal obligation by the surety is premised on the existence of the principal obligation. Therefore, in a case where the principal obligation of the policyholder at the time of the obligor’s act of contributing to an obligation by the surety was extinguished retroactively, the principal obligation of the surety still remains at issue of return of unjust enrichment between the obligee (insured) and the obligee (the principal obligor) on the ground that the policyholder (the principal obligor) did not have the principal obligation at the time of the obligor’s act of contributing to the guaranteed obligation, the obligee (insured) cannot claim a return of unjust enrichment on the ground that it did not occur (see, e.g., Supreme Court Decision 2004Da26134.

2) Review of the reasoning of the lower judgment and the record reveals the following facts.

A) The Plaintiff and the Defendant concluded the instant consignment contract with respect to the instant consignment facility on August 31, 2010, with the term of entrustment from September 28, 2010 to September 27, 2013, with the terms of KRW 135,00,000 per annum.

B) Article 8 of the instant consignment contract provides that in preparation for damages incurred to the Defendant due to breach of contract, the Plaintiff shall deposit and set the entrusted management deposit amount of KRW 200 million at the time of entering into a contract (Paragraph 1), and 50 million among them, deposit in cash in the account designated by the Defendant, and submit the remainder KRW 150 million to the guarantee insurance company having jurisdiction over the consignment facility as the insured by entering into a guarantee insurance contract with the guarantee insurance company having jurisdiction over the consignment facility (Paragraph 2), and the payment guarantee insurance can be appropriated for payment in whole or in part where the Plaintiff incurred damages or other debts to the Defendant (Paragraph 3)

C) On August 31, 2010, as stipulated in Article 8 of the instant consignment contract, the Plaintiff concluded a performance guarantee insurance contract with the Defendant, the purchase price of KRW 150 million, and the insurance period from September 28, 2010 to September 27, 2013, between the Seoul Guarantee Insurance Co., Ltd., as well as the Plaintiff, on the ground that the instant consignment contract was terminated on July 19, 201, on the ground that the Plaintiff’s termination is illegal, and the Defendant terminated the instant consignment contract on the ground that the Plaintiff’s termination is illegal.

E) On February 2, 2012, the Defendant filed a claim with the Seoul Guarantee Insurance Co., Ltd. for the payment of KRW 150,00,00,00,000, which is the purchase price of KRW 218,69,510 (public utility charge of KRW 71,79,600, and trust charge of KRW 42,164,380, and penalty of KRW 4,216,430, and penalty of KRW 7,301,100, and KRW 27,000,000, and KRW 66,210,000,00, which is the purchase price of membership deposit. On March 8, 2012, the Seoul Guarantee Insurance Co., Ltd. paid KRW 150,000,000,000 as insurance money to the Defendant.

F) Around that time, the Defendant paid KRW 71,79,600 of the public utility fee in arrears with the insurance money received from the Seoul Guarantee Insurance Co., Ltd., and appropriated KRW 42,164,380 of the trust fee, KRW 4,216,430 of the penalty, KRW 7,301,30 of the late payment penalty, KRW 24,518,490 of the penalty, and KRW 24,518,490 of the penalty, which the instant consignment contract was lawfully terminated on the grounds of the Defendant’s nonperformance of the repair obligation. As such, the Defendant sought a refund of the amount equivalent to the amount appropriated as unjust enrichment, penalty, trust fee, and value-added tax, out of the insurance money received from the Seoul Guarantee Insurance Co., Ltd., on the ground that it is unjust enrichment in relation to the Plaintiff.

3) Examining the above facts in light of the legal principles as seen earlier, if the instant consignment contract was lawfully terminated on July 19, 201 due to the reasons attributable to the Defendant and the Plaintiff did not have the obligation to pay the penalty or late payment charge to the Defendant from the beginning, even if the Defendant appropriated the insurance proceeds received from the Seoul Guarantee Insurance Co., Ltd. for the penalty or late payment charge, it is separate from claiming the return of the insurance proceeds already paid against the Defendant on the ground that the Seoul Guarantee Insurance Co., Ltd., which received the insurance proceeds, did not have the principal obligation. However, the Plaintiff cannot seek the return of the insurance proceeds that the Defendant received from the Seoul Guarantee Insurance Co., Ltd. against the Defendant, who did

4) Nevertheless, the lower court accepted a claim for the return of unjust enrichment equivalent to the penalty and arrears on the ground that appropriating the penalty and arrears with the insurance money received by the Defendant from Seoul Guarantee Insurance Co., Ltd. for the unjust enrichment in relation to the Plaintiff. In so doing, the lower court erred by misapprehending the legal doctrine on the return of unjust enrichment, thereby adversely affecting the conclusion of the judgment. The allegation

2. Plaintiff’s ground of appeal

A. As to the claim for damages

The court below rejected the plaintiff's claim for damages on the ground that the entrustment contract of this case was terminated on the ground of the defendant's non-performance of repair obligation, although the defendant is liable to compensate the plaintiff for damages caused by the plaintiff's failure to perform repair obligation, the evidence submitted by the plaintiff alone is insufficient to deem that the defect of this case caused a decrease in sales of the entrusted facility of this case, and the fact that there was a decrease in sales alone is difficult to deem that there was a causal relation with

Examining the reasoning of the lower judgment in light of the relevant legal principles and records, the said determination by the lower court is just and acceptable. In so doing, contrary to what is alleged in the grounds of appeal, the lower court did not err by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, or by misapprehending the legal doctrine as to causation between nonperformance and injury or by misapprehending the method

B. As to the claim for restitution of unjust enrichment

The lower court rejected a claim for return of unjust enrichment equivalent to trust fees and value-added tax on grounds of its reasoning, including that, even after the commission contract of this case was lawfully terminated on July 19, 2011, the Plaintiff was able to occupy the instant consignment facility and continue to operate the sports facility, etc., and thus, the Plaintiff returned to the Defendant the amount equivalent to the profits from the use of the instant consignment facility during the pertinent period as unjust enrichment, and therefore, it is difficult to view that the Defendant’s appropriation of trust fees and value-added tax for the insurance proceeds received from the Seoul Guarantee Insurance Co., Ltd. as the insurance proceeds received from the Defendant for the

However, as alleged by the Plaintiff, even if the Plaintiff did not have the obligation to pay the trust fee and value-added tax to the Defendant during the above period, it is separate from claiming the return of the insurance money already paid to the Defendant on the ground that the Seoul Guarantee Insurance Co., Ltd., which contributed the insurance money, did not have any principal obligation, on the ground that the principal debtor was in the position, and the Plaintiff cannot seek the return of the insurance money paid to the Defendant from the Seoul Guarantee Insurance Co., Ltd., and therefore, the Plaintiff’s claim for return of unjust enrichment on this part cannot be accepted without examining whether the Plaintiff is liable to pay the trust fee and value-added tax

Therefore, the lower court’s rejection of the claim for return of unjust enrichment on the ground that the Plaintiff was liable to pay the Defendant the amount equivalent to the commission fee and value-added tax during the above period was inappropriate in its reasoning, but its conclusion is justifiable. Therefore, contrary to what is alleged in the grounds of appeal, the lower court did not err by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, or by misapprehending the legal doctrine on the interpretation of disposal documents, the lessee’

3. Conclusion

Therefore, the part of the lower judgment against the Defendant regarding the claim for restitution of unjust enrichment is reversed, and that part of the case is remanded to the lower court for further proceedings consistent with this Opinion. The Plaintiff’s appeal and the remainder of the Defendant’s appeal are dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Sang-ok

Justices Kim Jae-han

Justices Lee Dong-won

Justices Park Jong-young