2018Da228868 Return of Fraudulent Gains

Plaintiff 1 and one other

Law Firm Ro-ro, Counsel for the plaintiff-appellant

Attorney Yellow-gu et al.

Co., Ltd.

Seoul Central District Court Decision 2017458870 Decided April 4, 2018

October 29, 2020

The judgment below is reversed, and the case is remanded to the Seoul Central District Court.

The grounds of appeal are examined.

1. Case summary

The reasoning of the lower judgment and the record reveal the following facts.

A. From August 25, 200, Nonparty 1 owned a road listed in [Attachment 1]-6 [Attachment 1] of the lower judgment prior to the division and land category change (hereinafter “road in this case”, and the specific land is set by the sequence). Of the instant roads, the first road was the land category from its original date, and the second-V road was the land category, but Nonparty 1 consented to the designation of the road around December 2007 and was designated and announced by the Namyang-ju market as a road on May 20, 2008, and the land category was changed to the road.

B. On May 14, 2008, Plaintiff 1 purchased the shares of the instant road from Nonparty 1 and completed the registration of ownership transfer on May 20, 2008. Some of Plaintiff 1’s shares purchased on August 4, 2008 and completed the registration of ownership transfer on August 28, 2008. Nonparty 2 and Nonparty 3 purchased on March 10, 2017 and completed the registration of ownership transfer on March 29, 2017.

On January 21, 2015, Plaintiff 2 sold part of Plaintiff 2’s shares to Nonparty 4, and registered the ownership transfer on January 23, 2015. On May 25, 2016, Plaintiff 2 sold part of the remaining shares to Nonparty 5, and registered the ownership transfer on June 14, 2016. In the case of Nonparty 4-6, Plaintiff 2 sold part of the remaining shares to Nonparty 6 and Nonparty 2 on August 29, 2016, and registered the ownership transfer on the same day. Plaintiff 1 was entitled to access to the instant site through the instant road. Plaintiff 2, on August 28, 2008, was registered the ownership transfer of the instant shares on the ground of sale on August 4, 2008, and on October 14, 2008, Plaintiff 2 changed the ownership transfer on the instant building site to Nonparty 2 on the same day.

On September 16, 2010, Plaintiff 2 completed the registration of ownership transfer on the ground of payment in kind on September 14, 2010, for the instant building site and building. The Defendant purchased the instant building site and building in the public sale procedure on August 27, 2015, and completed the registration of ownership transfer on August 31, 2015. The Defendant purchased part of Nonparty 3’s shares on May 26, 2017 and completed the registration of ownership transfer on the same day.

D. During the period in which the Plaintiffs owned the shares of the instant road, the Plaintiffs filed the instant lawsuit seeking the return of unjust enrichment on the ground that the Defendant obtained a benefit equivalent to usage fees without any legal ground while driving the instant road and incurred losses to the Plaintiffs equivalent to the said shares.

2. The judgment of the court below

The lower court rejected the Plaintiffs’ assertion on the following grounds. In light of the fact that it is difficult to recognize that the instant road was provided for the traffic of the general public, it is difficult to deem that Nonparty 1, the former owner, renounced exclusive, exclusive, and exclusive rights to use and benefit from the instant road.

However, in light of the following circumstances, claiming the return of unjust enrichment to the Defendant who succeeded to the ownership of the instant building site and building is against the principle of trust and good faith. Plaintiff 1 purchased shares in the instant road under the conditions designated and publicly announced as the road, and the category of the instant road was changed to the road on the day of purchase. Plaintiff 2 appears to have satisfied the requirements of the main sentence of Article 44(1) of the Building Act, since the instant road was designated and publicly announced as the road upon obtaining a building permit on the instant building site, and the instant road was designated and publicly announced as the road. Plaintiff 2 transferred the ownership of the instant building site and building to the Him Industrial Development Co., Ltd., and then the Plaintiffs were deemed not to have received the usage fee of the instant road from the Hyeong Industrial Development Co., Ltd., Ltd. Accordingly, the Plaintiffs should be deemed to have permitted at least the owner of the surrounding land or the owner

3. Supreme Court Decision

A. The owner of a thing acquires any benefit from the thing without title. In a case where the other party claims the return of the benefit from the thing in return for unjust enrichment, the other party is obligated to return the benefit to the owner in return for unjust enrichment, unless the other party asserts and proves that he/she has the title to hold such benefit. In such a case, the establishment of unjust enrichment is not denied solely on the ground that the pertinent land or land category is “road”, and the amount of unjust enrichment should be calculated in consideration of the circumstances being used as a road (see Supreme Court Decision 2016Da210320, Mar. 14, 2019).

The principle of trust and good faith refers to an abstract norm that a party to a legal relationship should not exercise his/her right or perform his/her duty in a way that violates the principle of trust and good faith by taking into account the other party’s interest. In order to deny the exercise of right on the ground that the exercise of right is contrary to the principle of trust and good faith, the provision of trust and good faith to the other party or the exercise of right against the other party’s trust should reach the level that is not acceptable in light of the concept of justice. In addition, the absence of trust and good faith to the other party or the exercise of right to the other party is not in a justifiable state, and the exercise of right is not contrary to the concept of justice (see Supreme Court en banc Decision 91Da3802, Dec. 10, 1991; 2012Da89399, Dec. 18, 2013).

B. According to the above facts and records, the following circumstances are revealed.

(1) The road of this case is connected to the road of this case through the land of Namyang-si, Namyang-si, which is owned by Namyang-si. Nonparty 1 owned the road of this case from August 25, 2000 before division and land category change. On May 20, 2008, the road of this case was transferred to Plaintiff 1 on May 20, 208, and its land category was divided and land category was changed.

(2) On August 28, 2008, part of Plaintiff 1’s share was transferred to Plaintiff 2 on several occasions since it was partially transferred. around May 29, 2017, Plaintiff 1’s share was transferred to Plaintiff 2, Nonparty 2, Nonparty 7, Nonparty 3, Nonparty 4, Nonparty 5, Nonparty 8, Nonparty 8, Nonparty 9, Nonparty 10, and Nonparty 11. All these were purchased according to a sales contract or in the process of compulsory auction.

(3) Co-owners to whom Plaintiff 1’s shares were transferred appear to have acquired shares to use the instant road for traffic on the grounds that they owned a neighboring site. On September 16, 2015, after the Defendant acquired the ownership of the instant building site and building, the Plaintiffs sent a certificate of content of claiming usage fees to the Defendant on the grounds that the Defendant used the instant road. The Defendant acquired the shares of the instant road on May 26, 2017.

(4) Around December 2007, Nonparty 1 consented to the designation of the road on the instant road, but this was intended to construct the instant road on the land ( Address 2, 3 omitted) at Namyang-si pursuant to Articles 34(1) and 2 subparag. 11(b) of the former Building Act (wholly amended by Act No. 8974, Mar. 21, 2008).

(5) There is no evidence to deem that Nonparty 1 or the Plaintiffs provided the instant road as a passage for the general public without compensation during the period in which they owned the instant road’s share. Examining these circumstances in light of the aforementioned legal principles, the following conclusion is derived. It is difficult to deem that Nonparty 1 or Nonparty 1, the former owner of the instant road, at the time of acquiring the instant road’s share, allowed the instant road to be provided to the owner of the surrounding land or the owner of the instant site without compensation. Plaintiff 2, upon obtaining the building permit on the instant site, satisfied the contact duty under the main sentence of Article 44(1) of the Building Act by designating and publicly announcing the instant road, or the Plaintiffs’ claim for return of unjust enrichment is contrary to the principle of trust and good faith solely on the ground that the Plaintiffs did not receive the instant road usage fee from the Fei Industrial Development

D. Nevertheless, while it is difficult to view that Nonparty 1 renounced exclusive and exclusive rights to use and benefit from the instant road, the lower court concluded that the Plaintiffs admitted the instant road to be offered for free traffic, and determined that the Plaintiffs’ claim violates the principle of trust and good faith. In so doing, the lower court erred by exceeding the bounds of the principle of free evaluation of evidence inconsistent with logical and empirical rules, or by misapprehending the legal doctrine on the principle of trust and good faith, thereby adversely affecting the conclusion of the judgment

4. Conclusion

The plaintiffs' appeal is with merit, and the judgment of the court below is reversed, and the case is remanded to the court below for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices

The presiding Justice shall mobilization by the presiding Justice

Justices Kim Jae-sik in charge

Justices Min Min-young

Justices Noh Tae-ok