(영문) 대전지방법원 2017.8.9.선고 2017나102950 판결

1. The part against the defendant in the judgment of the court of first instance is revoked, and the plaintiff's claim corresponding to the revoked part is dismissed.

2. The plaintiff's appeal is dismissed.

3. All costs of the lawsuit shall be borne by the Plaintiff.

Purport of claim and appeal

1. Purport of claim

The defendant shall pay to the plaintiff 37, 370, 400 won, and 5% per annum from December 10, 2014 to the delivery date of a copy of the complaint of this case, and 15% per annum from the next day to the day of complete payment.

H. D. D.

2. Purport of appeal

A. Plaintiff: The part against the Plaintiff falling under the following order of payment among the judgment of the first instance.

. The Defendant’s revocation of KRW 22, 370, 400 and the Plaintiff’s payment of KRW 22, 370 as well as KRW 40 as to the Plaintiff from December 10, 2014 to December 2016.

12.2 up to 2.0% per annum and 15% per annum from the following day to the day of full payment.

Korea shall pay the same amount of money.

(b) Defendant: Revocation of the part against the Defendant in the judgment of the first instance, and the Plaintiff’s office corresponding to that part;

The Gu is dismissed.

Reasons

1. Basic facts

The reasoning for this Court's explanation is as follows: "(6) was established under the second sentence of the judgment of the court of first instance," and "(1) was paid under the second sentence," and "(2) was followed by the first sentence (hereinafter "the criminal compensation of this case")", in addition to the addition of "the first sentence" under the second sentence of the judgment of the court of first instance, it shall be accepted as it is in accordance with the main sentence of Article 420 of the Civil Procedure Act.

A. Summary of the cause of the claim

Article 6(2) of the Act on Criminal Compensation and Restoration of Honor (hereinafter “Criminal Compensation Act”) provides that in cases where a person entitled to criminal compensation receives the amount of compensation for the same cause as prescribed by other Acts with respect to the same cause, if the amount of compensation is more than the amount of compensation to be paid under the Criminal Compensation Act, the amount of compensation shall not be paid. However, given that the amount of the compensation is paid for the same cause as the amount of compensation for a related civil lawsuit, and the amount paid is more than the amount of the compensation paid, the Defendant may not be entitled to receive the compensation pursuant to the above provision of the Act. Despite this, the Defendant, without any legal cause, has a duty to return the same amount to the Plaintiff. As such, the Defendant is obligated to return it as unjust enrichment.

B. Determination

1) The unjust enrichment system imposes the duty of return on the benefiting party on the basis of the ideology of equity and justice in a case where the benefiting party’s property gains lack legal causes. It seems that there exists a change in a certain property value among a certain benefiting party and that there seems to be a general and formally justifiable party. However, in a case where the change in property value among them is contrary to the principles of equity that are above the other principles of equity in the law from a relative and substantive point of view, it is intended to resolve such inconsistency by ordering the person who acquired the value of property to return the value (see Supreme Court en banc Decision 2014Da5531, Jun. 25, 2015). Therefore, the issue of whether “the lack of legal cause” among the elements for establishing unjust enrichment belongs to the area of normative judgment based on the principle of fairness, and thus, it should be reasonably determined by taking into account the nature of the unjust enrichment or the responsibility and duty related to the act of payment at issue, etc. (see Supreme Court Decision 2016Da13735, Apr. 13, 2015, 2016

Article 6 (1) of the Criminal Compensation Act does not prohibit a person entitled to compensation from claiming compensation under any other Act. "Article 6 (2) of the same Act shall not apply to cases where a person entitled to compensation has received compensation for the same reason under the same Act, and where the amount of such compensation is equal to or greater than the amount of compensation to be paid under this Act. If the amount of such compensation is less than the amount of compensation to be paid under this Act, the amount of compensation shall be determined after subtracting the amount of compensation. "On the other hand, Article 9)" On the other hand, the court shall determine the amount of compensation after hearing the opinion of the prosecutor and the requester (Article 14 (2)). When compensating for detention, the court shall determine the amount of compensation after deducting the amount of compensation paid from the amount of compensation to be paid under this Act. Article 14 (2) of the Criminal Compensation Act shall apply mutatis mutandis to the determination of the amount of compensation to be paid under the minimum wage per day under the Minimum Wage Act of the year in which the grounds for claiming compensation exist; Article 5 (1) and 2) of the Criminal Compensation Act shall be applied mutatis mutandis.

2) Comprehensively taking account of the purport of the arguments as to this case’s health class, Gap evidence Nos. 1 through 3 (including branch numbers), the amount of damages against the defendant in the relevant civil procedure is determined as follows: ① 8,00,00 won unique consolation money, ④ 80,00,000 won inherited by the defendant as consolation money for the deceased; ② 222,22,22, and 666 won inherited by the defendant as consolation money for the defendant’s assistance; ② 10,66 won as consolation money for the defendant’s assistance; ② 30,00 won as consolation money for the defendant’s assistance; ② 97,00 won as consolation money for the defendant’s inheritance; ② 97,190,474 won as consolation money for the defendant’s death; ② 20,000 won as consolation money for the deceased’s physical injury and mental injury to the deceased’s body; and ③ 97,07,000 won as consolation money for the defendant’s assistance.

Comprehensively taking account of these facts, the court set the instant criminal compensation in consideration of the circumstances such as the type and period of detention, property loss sustained during the period of detention, loss of profits that could have been gained, mental suffering, and physical damage, etc., and thus, the instant criminal compensation includes not only the deceased’s property damage but also the consolation money. This is recognized as having been within the scope of KRW 80,00,000 of consolation money of the deceased recognized in the relevant civil litigation.

3) However, in light of the concept of fairness and justice, in full view of the following circumstances and facts admitted by comprehensively taking account of all the evidence mentioned above, the Defendant’s receipt of the instant criminal compensation based on the final and conclusive criminal compensation decision lacks legal grounds and unjust enrichment.

It is difficult to view that it is constituted.

A) The scope of the right to claim criminal compensation is determined according to the same Act, which forms a specific content under the Criminal Compensation Act. When a claimant becomes final and conclusive by exercising the right to claim criminal compensation, a right to claim criminal compensation finalized against the State, namely, a right to claim criminal compensation (see Articles 21 and 23 of the Criminal Compensation Act). Supreme Court Decision 2015Da223411, May 30, 2017).

B) The prosecutor did not assert that the Defendant had already paid consolation money exceeding the amount of the compensation that can be recognized under the Criminal Compensation Act in accordance with the final judgment of the relevant civil case. Accordingly, the court decided on August 12, 2014 as KRW 194,400, the upper limit of the amount of the compensation per day for the detention days of the Plaintiff pursuant to Article 5(1) and (3) of the Criminal Compensation Act, and Article 2 of the Enforcement Decree of the same Act, the amount of compensation for the execution of capital punishment shall be KRW 30,00,000, the upper limit of the amount of compensation for the Defendant who is a sole heir of the deceased, as well as KRW 37,979,400 [Article 194,400 x 30,000].

C) The prosecutor did not file an immediate appeal even after receiving the above decision on criminal compensation, and the decision on criminal compensation became final and conclusive as is. The Defendant received the instant criminal compensation according to the final and conclusive decision on criminal compensation.

3. Conclusion

Then, the plaintiff's claim shall be dismissed as it is without merit. Since the judgment of the court of first instance is unfair with some different conclusions, the part against the defendant in the judgment of the court of first instance which accepted the defendant's appeal and dismissed the plaintiff's claim corresponding to the revoked part, and it is so decided as per Disposition by the assent of all participating Justices on the appeal of the plaintiff.