2012Na14082 Return of unjust enrichment

A

B

Suwon District Court Decision 2011Da21785 Decided September 5, 2012

June 24, 2013

July 4, 2013

1. The defendant's appeal is dismissed.

2. The costs of appeal shall be borne by the Defendant.

1. Purport of claim

The defendant shall pay to the plaintiff 5,026,940 won with 20% interest per annum from the day following the delivery of a copy of the complaint of this case to the day of complete payment.

2. Purport of appeal

The part of the judgment of the first instance against the defendant shall be revoked, and the plaintiff's claim corresponding to the above revocation shall be dismissed.

1. Basic facts

A. On December 29, 2006, the Plaintiff agreed to borrow KRW 200,000,000 from the Defendant as follows (hereinafter “instant primary and collateral contract”).

Interest rate: 150,000,000 won for temporary payment

Due date: June 30, 2007

00,000,000 won

○ 1% per month shall be paid to 200 million won ( principal) at the time of the unpaid principal and interest after six months.

B. According to the first-use and mortgage contract of this case, the registration of creation of a mortgage was completed prior to the filing of the maximum debt amount of 400,000,000 won on the ground of the contract on December 29, 2006, No. 162349, which was received on December 29, 2006, with each of the real estates listed in the separate list owned by the plaintiff (hereinafter referred to as the "each of the real estates of this case") as joint collateral. However, the Plaintiff failed to repay the principal and interest of the loan stipulated in the first-use and mortgage contract of this case, and the Defendant applied for a auction of real estate as D with respect to each of the real estates of this case on June 23, 2008, with the amount of the claim stated "350,000,000,0000 won, and damages for delay from June 30, 207 as the annual interest rate of 1% prior to the date of delinquency."

D. On June 24, 2008, the auction court rendered a ruling to commence the auction on each of the instant real property. On December 23, 2008, the first sale date was set at 2008, and the Plaintiff offered an additional security equivalent to KRW 100,000 to the Defendant in order to postpone the auction process on each of the instant real property. Accordingly, on December 22, 2008, the Plaintiff borrowed KRW 100,000,000 from the Defendant as of 207,6,300, the Plaintiff agreed to set up a collective security right with a maximum debt amount of KRW 100,000 for the Defendant (hereinafter “the second sale contract and collective security right of this case”); the Plaintiff, the issuer, the amount of KRW 100,000,000,000 for each of the instant real property; the date of payment for the bill issued at 30,007, and the bill was issued at 100,007.

E. According to the second-use and mortgage contract of this case, the registration of the establishment of a mortgage as the Defendant of the mortgagee was completed on December 23, 2008 with the 1,00,000,000 won, and the maximum amount of debt on the ground of the contract, which was concluded on December 22, 2008, as well as the 1,671m2, and the building on the ground of the joint security.

F. After the National Agricultural Cooperative Federation on March 30, 2009, filed an application for a discretionary auction of real estate with the Jung-gu District Court M on each of the instant real estate on March 30, 2009, the auction court rendered a decision to commence auction on April 1, 2009, and conducted the auction procedure of real estate M with the above Jung-gu District Court M.

G. On September 20, 2009, the Defendant submitted a claim statement with respect to the claims to be received from the Plaintiff to an auction court as described in the following table:

A person shall be appointed.

H. On September 29, 2009, the court of auction prepared a distribution schedule stating that the Defendant distributes the principal amount of KRW 350,000,000 and interest thereon KRW 94,586,301, which is the date of distribution, KRW 339,076,255, out of KRW 44,586,301.

【Ground of recognition】 In the absence of dispute, Gap’s evidence of 1 through 5, Eul’s evidence of 1, 2, 3, Eul’s evidence of 5 through 8, Eul’s evidence of 9-1, 2, 3, 7 through 10, the purport of all pleadings, and the purport of the whole pleadings

2. Determination as to the cause of action

A. Relevant legal principles

In a case where an agreement is reached with a loan for consumption of money, if the interest rate is remarkably high, beyond the limit permitted by social norms, due to a difference in the economic power of both parties, if the lender gains an unjust benefit by taking advantage of his superior status and the borrower imposes an excessive benefit or any other unjust burden on the borrower, and thus, it shall be null and void as a juristic act which violates good customs and other social order. The payment of interest to the lender on the ground of an invalid part in violation of good customs and other social order shall be deemed as a payment of property arising from an illegal cause. However, even in an illegal cause, if the illegal cause exists only to the beneficiary, or if the illegality of the beneficiary is significantly larger than that of the payer, and thus, if the payment of interest exceeds the limit permitted by social norms goes against the good faith and good faith principle, it shall be deemed that the lender gains an unjust benefit by taking advantage of his superior status, and thus, it shall be deemed that the lender bears an excessive burden on the lender or the borrower, and thus, it shall be deemed that the lender bears an excessive burden on the lender or the unlawful interest (see, 200.

B. With respect to a case of restitution of unjust enrichment, 150,00,000 won, which is the agreement set forth in the first-use and mortgage contract of this case, were annually converted into 150% per annum. However, Article 2(1) of the former Interest Limitation Act (amended by Act No. 8322 of March 29, 2007 and enforced on June 30, 2007) provides that "the maximum interest rate under the contract for monetary lending and lending shall be prescribed by Presidential Decree within the extent not exceeding 40% per annum." Since the provision on the highest interest rate under Article 2(1) of the Interest Limitation Act was amended into force on July 25, 201, 30% per annum, and the provision on the highest interest rate under Article 2(1) of the same Act was revised into force on October 26 of the same year, and the agreement was concluded with the highest interest rate of 30% per annum and the agreement was null and void.

However, according to the above facts and evidence, as stated in the application for auction, the court of auction calculated the principal amount of KRW 350,000,000 as principal under the first-use mortgage contract of this case as stated in the application for auction; as to the above KRW 350,000,000 as principal amount; as to the above KRW 350,000,000 as principal amount; as from July 1, 2007, the date of maturity from July 1, 2007 to September 29, 2009, the agreed interest rate of KRW 94,586,301 (350,000 x 0.00 x 0.365 x 822 / 365) with interest rate of KRW 44,586,30,000 as principal amount; as to the remaining amount from the date of maturity of payment to the above 339,076,2500,000,000 won as principal and interest rate of this case.

Therefore, without any legal ground, the Defendant gains profits equivalent to the above excess dividend amount, and thus, it shall be deemed that the Plaintiff, the owner of each real estate of this case, who would have been entitled to receive the above excess dividend amount if the dividend was not erroneous as above, incurred losses equivalent to the above excess dividend amount (see Supreme Court Decision 90Meu28412, Nov. 27, 1990). Thus, the Defendant is obligated to return the above excess dividend amount to the Plaintiff as unjust enrichment.

C. Scope of return of unjust enrichment

Furthermore, with respect to the amount of unjust enrichment that the Defendant is obliged to return to the Defendant, the total amount of principal and interest on loan and delay damages on the rate of 284,230,136 won [=200,000 won of the borrowed principal on December 29, 2006 + 30,246,575 won (20,00,000 x 0.365 won x 0.36% of the interest rate of 30% per annum from December 29, 207 to June 30, 2007 x 0.36% of the interest rate of 20,000 won which the Defendant is obliged to pay to the Defendant for delay damages on July 1, 2007 to 205 x 365% of the interest rate of 12% per annum from July 1, 2007 to September 29, 2009).

3. Judgment on the defendant's assertion

The defendant, on December 22, 2008, changed the part of the interest accrued from July 1, 2007 to December 22, 2008, which is the due date from July 1, 2007 to December 22, 2008 under the contract on the first-use collateral security and the contract on the right to collateral security, to KRW 100,000. The above KRW 100,000,00, as interest on the principal of the loan under the contract on the first-use collateral and the right to collateral security, is included in the secured claim of the right to collateral security as interest on each of the real estate of this case, and even if some of the parties to the contract on the first-use collateral and the right to collateral security, are null and void in violation of good morals and other social

Even if so, the defendant asserts that he has the right to receive all of the above dividends.

On June 30, 2007, in addition to the statement that the Plaintiff borrowed KRW 100,000 from the Defendant in the loan repayment agreement and the loan loan agreement (Evidence No. 3) as of June 30, 2007, the following circumstances acknowledged by the facts charged with the above recognition and each evidence, i.e., (i) there is no statement that the Plaintiff changed the above part from July 1, 2007 to December 22, 2008 among damages for delay under the first-use and mortgage agreement of this case, from July 1, 2007 to December 22, 2008; and (ii) there is no statement that the Defendant submitted on September 20, 2009 to the bond statement submitted by the Defendant.

In light of the fact that interest on KRW 200,000,000 as above and the above KRW 200,000,000 per annum from December 23, 2008 to September 29, 2009, the above interest on KRW 200,000 was not stated as the aggregate amount of KRW 12% per annum, but as to KRW 200,000,000 per annum from June 30 to September 29, 2009, the above interest was stated as KRW 54,049,315 per annum from June 30 to September 29, 2009. In light of the fact that the above interest on KRW 10,00,000 and KRW 200,00 were stated in the principal portion, the second-use and mortgage contract of this case are not the first-use and mortgage interest, but the additional contract is not the additional contract or the additional contract for loan for consumption between the plaintiff and the defendant.

Therefore, the above 10,00,000 won is not included in the secured claim of the defendant as to each of the real estate of this case. Thus, the above argument by the defendant is without merit. [In addition, the defendant submitted an application for auction with the claim amount of 350,00,000 won and damages for delay with the rate of 12% per annum from June 30, 2007 to the date of full payment. The defendant submitted a claim statement with the purport of adding the above 100,000,000 won to the principal of the loan at the auction court on September 20, 2009. Since the above claim amount of 10,000,000 won is confirmed to the extent of the claim amount stated in the above application for auction, and the above claim amount of 100,000,000 won cannot be claimed to be extended to 10,000,000 won and 10,000,000 won as above.

4. Conclusion

If so, the plaintiff's claim of this case is justified within the above scope of recognition, and the remaining claims are dismissed without merit. The judgment of the court of first instance is partially unfair, but the judgment of the court of first instance cannot be modified disadvantageous to the defendant who is the appellant under the principle of prohibition of disadvantageous alteration. Thus, the defendant's appeal is dismissed. It is so decided as per Disposition.

The presiding judge, judicial police officer;

Judges Cho Jong-soo

Judges Lee Dong-gu

A person shall be appointed.