Searching Jin-Jin Pyeong-Jin (Attorney Choi Chang-young, Counsel for the defendant-appellant)

Defendant (Attorney Kim Jong-sung et al., Counsel for the defendant-appellant)

March 13, 2013

Daejeon District Court Decision 201Gahap3021 Decided May 3, 2012

1. The plaintiff's appeal is dismissed.

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

The judgment of the first instance shall be revoked. The defendant shall be KRW 100,000,100 and the complaint of this case against the plaintiff.

It shall pay 20% interest per annum from the day following the service to the day of full payment.

1. Basic facts

A. On July 18, 2007, the Plaintiff sold the 320,109 square meters of forest land (number omitted) to the Dagjin-gun, Chungcheongnam-gun, the Plaintiff owned by the Plaintiff and nine persons, including Nonparty 1, for the purpose of changing “Nonindicted 1” to “Nonindicted 2,” and filed an application for change to the competent registry office on September 14, 2008, on the ground that the application was rejected on the ground that the identity of Nonparty 1 was not recognized as identical on September 14, 2008.

B. On October 207, the Defendant received KRW 100 million in cash from the Plaintiff’s general secretary 3 and the senior director Nonparty 4 (hereinafter “the Plaintiff’s general secretary, etc.”) at the Plaintiff’s office located in the Shinjin-gun, Jin-gun, Jin-gun, Chungcheongnam-gun, in solicitation with the competent registry office, under the pretext of having the registered titleholder 1 corrected “Nonindicted 1” as “Nonindicted 2.” (hereinafter “instant delegation contract”).

C. The defendant was sentenced to punishment of one year and six months of imprisonment for the crime of violation of the Act on the Aggravated Punishment, etc. of Specific Crimes (Aggravated Punishment, etc. of Specific Crimes) and 100 million won for the above act (Sasan Branch Court of Daejeon District Court Decision 2009Da34, Mar. 5, 2009). In the appellate court, imprisonment for one year and six months, three years of suspended execution, three years of community service, 200 hours, and additional collection of KRW 100 million (Sa Daejeon District Court Decision 2009No692, May 21, 2009), and this judgment was finally binding around that time.

[Grounds for recognition] No. 1 Eul and the purport of the whole pleading

2. The parties' assertion

A. The plaintiff's assertion

1) On October 2007, the Defendant proposed that “Nonindicted 1” among the registered titleholders of the instant case should be corrected to “Nonindicted 2,” by soliciting the competent registry office at the office of the Tajin-gu clan office located in the Sinjin-gun, Chungcheongnam-gun, Chungcheongnam-gun, 2007, and the Plaintiff’s general secretary delivered KRW 100 million owned by the Plaintiff to the Defendant and embezzled it. As such, the Defendant is obliged to pay the Plaintiff KRW 100 million for compensation for joint tort caused by intention or negligence.

2) Selectively, the Defendant acquired KRW 100 million from the Plaintiff’s money without any lawful legal ground. Accordingly, the Defendant incurred damages equivalent to the same amount to the Plaintiff. Therefore, the Defendant should return the said KRW 100 million to the Plaintiff with unjust enrichment.

B. Defendant’s assertion

1) As to a claim for return of unjust enrichment, since the Plaintiff’s general secretary, etc. paid KRW 100 million to the Defendant on the ground of illegal solicitation, this cannot be claimed against the Defendant as illegal consideration.

2) On February 2, 2009, the defendant judged that Nonparty 5 was the representative of the plaintiff and returned KRW 100 million to Nonparty 5. Although it was found later that Nonparty 5 was not a legitimate representative, it is the repayment to the quasi-Possessor of the claim at the above point.

3. Determination

A. Determination on the assertion of joint tort

In order for a joint tort to be established, the common intent or common perception of the act is not required among the actors, but it should be considered that the act committed by each actor on the part of the actors on the part of the co-offenders on the part of the co-offenders on the part of the co-offenders on the part of the co-offenders on the part of the co-offenders on the part of the co-offenders on the part of the co-offenders on the part of the co-offenders on the part of the co-offenders on the part of the co-offenders on the part of the co-offenders on the part of the co-offenders on the part of the co-offenders on the part of the co-offenders on the part of the co

The fact that the Defendant received KRW 100 million from the Plaintiff’s general administrator, etc. for the purpose of illegal solicitation against public officials in connection with the performance of the sale and purchase contract of the forest of this case is recognized as mentioned above, and there is no dispute, and according to the entries and the purport of the evidence No. 4 as to the sale and purchase contract of the forest of this case, the Plaintiff and the Plaintiff’s general manager, etc. are in the position of joint sellers together with other title trustees, and the Plaintiff’s general manager, etc. received a loan. According to the above facts of recognition, the Plaintiff’s general manager, etc. paid KRW 100 million to the Plaintiff for the purpose of performing the Plaintiff’s duties. As such, even if the act of embezzlement is embezzlement in relation to the Plaintiff’s relationship, there is no evidence to prove whether the Defendant knew or could have known such fact, and therefore, even if the act of embezzlement was conducted, it cannot be recognized that the Defendant committed an intentional or negligent tort and caused

B. Determination of unjust enrichment assertion

1) The unjust enrichment is established in a case where a person gains profit from another person’s property or labor without any legal cause and thereby causes loss to another person. Even upon the Plaintiff’s assertion that the Plaintiff’s general director, etc. embezzled KRW 100 million and delivered it to the Defendant, the Plaintiff had already incurred loss to the Plaintiff at the time of embezzlement of KRW 100 million, and even if the Defendant received the money thereafter, it is merely an ex post facto act of embezzlement and does not cause additional loss to the Plaintiff, and even if the Plaintiff has any claim against the Plaintiff, etc., the Plaintiff does not have the right to claim a return of unjust enrichment against the Defendant. Accordingly, the Plaintiff’s assertion does not have the right to claim a return of unjust enrichment to the Defendant. Therefore, this part

2) Even if the Plaintiff’s assertion is interpreted to the effect that the Plaintiff paid KRW 100 million to the Defendant pursuant to the instant delegation agreement that was null and void, the delivery is deemed illegal consideration for the following reasons.

In full view of the above basic facts and the overall purport of oral argument, the following circumstances are consistent, namely, ① the Plaintiff’s general affairs, etc., upon the request of the competent registry office to correct “non-party 1” to “non-party 2” the registered titleholder of the instant forest, and paid KRW 100 million to the Defendant under the delegation contract of this case, ② the Plaintiff’s refusal of the Plaintiff’s assertion is deemed as the Plaintiff’s act. As long as the Plaintiff’s assertion is deemed as such, it is consistent with the premise that the Plaintiff’s general affairs, etc. knew of the fact that KRW 100 million was given for the purpose of illegal solicitation. As such, it is deemed that the Plaintiff was aware of the illegal cause. ③ The judgment of conviction of the Defendant of the violation of the Act on the Aggravated Punishment, etc. of Specific Crimes against the Defendant was finalized due to the above act, ④ The Defendant, who was a member of the basic local government at the time, demanded higher integrity, rather than the Defendant’s urgent resolution of pending issues through public officials’ solicitation, and thus, the Plaintiff’s assertion against the Defendant’s good customs.

4. Conclusion

Therefore, without examining the remaining issues, the plaintiff's claim of this case is dismissed as it is without merit, and the judgment of the court of first instance is just in this conclusion, and the defendant's appeal is dismissed as it is without merit. It is so decided as per Disposition.

Judges Shin Jae-op (Presiding Judge)