[1] Whether set-off against a claim for return of unjust enrichment caused by intentional tort is permitted (negative)

[2] The case holding that the right of set-off can be exercised in subrogation of the mandator in order to preserve the mandator's right to claim a representation against the mandator

[3] The nature of the mandatory's right of subrogation under the former part of Article 688 (2) of the Civil Code, and whether the debtor's insolvency is a requirement in the case where the mandatory exercises the obligor's right of subrogation in order to preserve the obligor's right of subrogation (negative)

[1] The purport of Article 496 of the Civil Code is to prevent the occurrence of a tort caused by an intentional act, as well as to have the victim receive actual repayment due to the tortfeasor's exercise of set-off right, if a set-off is allowed, the person who intentionally committed the tort would not be required to pay damages in reality, and the victim's actual repayment due to an intentional tort would not comply with the concept of social justice. Therefore, the set-off right guaranteed by the law is not applicable to the obligor due to an intentional tort, and further, if both claims compete with each other due to an intentional tort, the claim for return of unjust enrichment and the claim for return of unjust enrichment are established, and if both claims compete with each other due to an intentional tort, the actual reason of the claim, i.e., the fact that the cause of unjust enrichment was the intentional tort, and thus, it is reasonable to apply the prohibition of set-off under Article 46 of the Civil Code to the extent that the set-off liability is actually satisfied.

[2] The case holding that since Gap is a director of Eul who is a stock company Eul, the delegation provision of Article 382 (2) of the Commercial Act shall apply mutatis mutandis among them, and since Eul borrowed loans from Byung to raise a part of the purchase price for Eul's factory, and Gap is entitled to claim the repayment of loans on his/her behalf pursuant to the former part of Article 688 (2) of the Civil Code, since Eul bears an obligation for the management of delegated affairs, and it shall be entitled to claim the repayment of loans on his/her behalf, and it shall be entitled to exercise the right to set off unjust enrichment claims on Eul's final judgment against Eul and the obligation of the above loans on an equal basis in order to preserve the claim for objection

[3] The right to claim a representation system under the former part of Article 688(2) of the Civil Code, which a mandatary holds, has a different purpose from ordinary monetary claims. Thus, in a case where the mandatory exercises the obligor's right to claim a representation system in order to preserve the obligor's right to claim a representation system, the obligor's insolvency is not required.

[1] Articles 496 and 741 of the Civil Act / [2] Articles 404(1) and 688(2) of the Civil Act, Article 382(2) of the Commercial Act / [3] Articles 404(1) and 688(2) of the Civil Act

[1] Supreme Court Decision 93Da52808 delivered on August 12, 1994 (Gong1994Ha, 2290)

National Agricultural Cooperative Federation (Law Firm Pak, Attorneys Noh Jeong-kin, Counsel for defendant-appellant)

Defendant 1 and two others (Attorney Yang Young-soo, Counsel for the defendant-appellant)

Busan District Court Decision 2000Na21991 delivered on June 28, 2001

The appeal is dismissed. The costs of appeal are assessed against the plaintiff.

We examine the grounds of appeal.

1. On the first ground for appeal

According to the records, Defendant 1 asserted that “the amount of KRW 100 million of the instant loan, which the Plaintiff seeks against the Defendants, should be returned from the Plaintiff (Yansan-si Branch), not from the Defendants (Records 54-5, 72 pages).” It is sufficient to view that Defendant 1’s claim for return of unjust enrichment of KRW 256,049,810 against the Plaintiff of Defendant 1, which was finalized in the lawsuit claiming the return of down payment by the Ulsan District Court 98Gahap8918 against the Plaintiff, and the Plaintiff’s claim for the instant loan against Defendant 1 against Defendant 1, which was set off against the Plaintiff.

The ground of appeal on this point is without merit.

2. On the second ground for appeal

The purport of Article 496 of the Civil Act is to prevent the occurrence of an intentional tort and to have the victim receive actual reimbursement of damages due to an intentional tort as well as to prevent the occurrence of damages due to an intentional tort (see Supreme Court Decision 93Da52808, Aug. 12, 1994). The right of set-off guaranteed by the Act is not applicable to an obligor due to an intentional tort. Furthermore, if both claims compete by establishing a set-off claim for damages arising from an intentional tort, it would be unnecessary for the obligor to pay damages due to an intentional tort, and the victim would not be able to receive reimbursement due to an intentional tort. In addition, since the victim's claim for reimbursement of damages due to an intentional tort and the claim for return of unjust enrichment would not conform to the concept of social justice, the victim would not be able to receive reimbursement due to an intentional tort and would not be entitled to offset the damages due to an intentional tort under Article 49 of the Civil Act by analogy. Therefore, the purport of the Civil Act is that the set-off is reasonable even in cases where the victim claimed for damages due to an intentional tort.

Although the reasoning of the court below is somewhat insufficient, it is proper that the judgment of the plaintiff (Yyang City Branch) against the claim for return of unjust enrichment by intentional unlawful acts is not allowed to offset the claim, and there is no error of law by misunderstanding the legal principles as to Article 496 of the Civil Act, as alleged in the grounds of appeal.

The argument in the grounds of appeal on this point is not acceptable.

3. On the third ground for appeal

The record reveals that Defendant 1 exercised the right to set-off against the Plaintiff by Defendant 1 in order to preserve the right to claim a subrogation against the instant loans against Defendant 1 (Records 205, 206, 226 pages).

In addition, as Defendant 1 is a director of Defendant 1’s U.S., the provision of delegation pursuant to Article 382(2) of the Commercial Act applies mutatis mutandis among them, and in order to establish a part of the purchase price of Defendant 1’s factory, Defendant 1 borrowed KRW 100 million from the Plaintiff to deliver the loan of this case to Defendant 1. Defendant 1 bears the obligation regarding the management of delegated affairs. Defendant 1 is entitled to claim the repayment of the loan of this case on behalf of Defendant 1 under the former part of Article 688(2) of the Civil Act. Defendant 1 has the right to claim reimbursement of the loan of this case on behalf of Defendant 1. In order to preserve the right to demand a subrogation, it is reasonable to view that Defendant 1 may exercise the right to return unjust enrichment in the final judgment against the Plaintiff by Defendant 1 and the right

In addition, since the obligor's right to speak in accordance with the former part of Article 688(2) of the Civil Code, and it has a purpose different from ordinary monetary claims, if the mandatory exercises the obligor's right to speak in subrogation in order to preserve the obligor's right to demand representation, it does not require the obligor's insolvency.

Therefore, the judgment of the court below that Defendant 1 exercised the right of set-off against the Plaintiff by exercising the right of set-off against Defendant 1 in order to preserve the right of subrogation against Defendant 1 is correct in accordance with the above legal principles, and it is not erroneous in the misapprehension of legal principles as to the requirements for exercising the right of subrogation as alleged in the ground of appeal.

The argument in the grounds of appeal on this point is not acceptable.

4. On the fourth ground for appeal

The allegation in the grounds of appeal that the judgment of the court below was erroneous in the determination of the court below that the plaintiff had expressed an intention of offset directly against the plaintiff when the plaintiff became the court below, is not only the premise that the plaintiff's intention of offset is allowed with respect to the claim for return of unjust enrichment based on intentional tort, but also it is also an additional decision that does not affect the conclusion of the court below as long as the vicarious exercise of the right of offset by the defendant 1 by the defendant 1 is justified. Thus, there is no reason to view

The argument in the grounds of appeal on this point is not acceptable.

5. 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 Jin-hun (Presiding Justice)