[1] Where the degree of involvement of the other party to a transaction with an executor of an act of breach of trust does not reach an active participation in the act of breach of trust, and has social reasonableness from the overall point of view of legal order, whether a contract concluded with an executor of an act of breach of trust can be deemed null and void solely on the ground that the other party knew or could have known that the act of the executor of the act constitutes an act

[2] The meaning of the unjust enrichment system, and whether the return obligation can be imposed in cases where the unjust enrichment does not actually accrue to the beneficiary (negative)

[3] In a case where it is found that the possessor’s possession has not been entitled to it, whether the presumption of good faith as to the possession has been broken (negative), and in a case where the possessor in good faith has lost in a lawsuit on this right, the meaning of “when the lawsuit has been brought,” which is the point at which the possessor in bad faith is considered as the possessor in bad faith (affirmative)

[1] Articles 103 and 746 of the Civil Act / [2] Article 741 of the Civil Act / [3] Articles 197, 201 (1) and (2), and 741 of the Civil Act

[1] Supreme Court Decision 2006Da47677 Decided March 26, 2009 (Gong2009Sang, 528) / [2] Supreme Court Decision 2010Da37325, 3732 decided September 8, 201 (Gong2011Ha, 2065) / [3] Supreme Court Decision 81Da233 decided September 22, 1981 (Gong1981, 1437), Supreme Court Decision 86Da196, 197 decided September 22, 197 (Gong1987, 199Da6350 decided March 10, 200 (Gong200; 9Da63538139 decided March 13, 2014) / [3] Supreme Court Decision 2013Da638149 decided March 13, 2014

Song-Pacific Agricultural Cooperatives (LLC, Kim & Lee LLC, Attorneys Kim Si-soo et al., Counsel for the defendant-appellant)

Hadong-Jak Jin-Jin-Jin-Jin-Jin-Jin-Jin-Jin-Jin-Jin-Jin-Jin

Seoul High Court Decision 2015Na2066043 decided July 15, 2016

The part of the lower judgment against the Plaintiff is reversed, and that part of the case is remanded to the Seoul High Court.

The defendant's appeal is dismissed.

The grounds of appeal are examined.

1. As to the Defendant’s ground of appeal

A. As to the misapprehension of the legal principle as to the effect of simultaneous performance defense and omission of judgment

The right to defense of simultaneous performance may be examined as to whether or not the parties have to invoke it (see Supreme Court Decision 90Meu2522 delivered on November 27, 1990).

The records reveal that the defendant did not exercise his right of defense against the plaintiff's claim for return of unjust enrichment. Thus, the defendant's ground of appeal on this part is without merit.

B. As to the assertion of violation of the rules of evidence regarding the holding of the clan assembly

The defendant asserts to the effect that, on June 7, 2004, the defendant did not have held a clan general meeting in relation to the purchase and sale contract (hereinafter referred to as the "sale contract in this case"), which he purchased forest land of 20,557 square meters (hereinafter referred to as "the forest land in this case") between the defendant and the defendant, which is owned by the defendant on June 7, 2004, the defendant argued to the effect that the court below erred by misconceptioning that the above clan general meeting was held in violation of the rules of evidence, such as misconception that the above clan general meeting was held.

However, according to the judgment of the court below, the court below did not find that the defendant did not have a legitimate resolution of the general meeting of clans, and there was no fact-finding that the defendant held the general meeting of clans in relation to the sales contract of this case. Thus, this part of the defendant's allegation in the grounds of appeal

C. As to the assertion regarding the parties to the contract, such as misapprehension of legal principles and violation of the rules of evidence

The lower court, based on its stated reasoning, determined that Nonparty 1 concluded the instant sales contract as the representative of the Defendant.

Examining the reasoning of the judgment below in light of the relevant legal principles and records, the above fact-finding and judgment of the court below are just, and there is no error in the misapprehension of legal principles as to the contracting parties or the rules of evidence

D. As to the assertion regarding the misapprehension of legal principles as to the requirements for establishing illegal consideration consideration and violation of the rules of evidence

As the other party to a transaction with an executor of an act of breach of trust is basically engaged in a transaction in the opposite part with an interest separate from the executor, the contract entered into with the executor of the act of breach of trust may be invalidated if the other party actively participates in the act of breach of trust, such as inducing or inducing the other party to the transaction, or participating in the whole process of the act of breach of trust, etc. However, the degree of involvement does not reach the degree of involvement, and from the overall point of view of legal order, it can be evaluated that the other party to the transaction has social reasonableness when comprehensively considering the motive, purpose and intent of the contract, the content of the contract, the necessity or relation of the required measure, and the relation between the other party to the transaction and the person executing the act of breach of trust, if it can be evaluated that the other party to the transaction has social reasonableness, such circumstance alone does not constitute an act of breach of trust (see Supreme Court Decision 2006Da47677, Mar. 26, 2009).

The lower court, based on the circumstances indicated in its reasoning, determined that it is difficult to view that the Gangnam school actively participated in the act of breach of trust, such as inducing or inducing Nonparty 1 and Nonparty 2 to commit the act of breach of trust, or participating in the entire process of breach of trust.

Examining the reasoning of the lower judgment in light of the relevant legal principles and records, the lower court’s fact-finding and determination are justifiable, and contrary to what is alleged in the Defendant’s grounds of appeal, there were no errors by misapprehending legal principles

E. As to the assertion regarding the violation of the rules of evidence concerning the substantial attribution of profits

Based on the circumstances indicated in its reasoning, the lower court determined that the Defendant was liable to return unjust enrichment to the Defendant on the ground that it could be deemed that KRW 1,243,600,000, which the Gangnam-Nam transferred to the Defendant’s account in the name of the Defendant out of the purchase price under the instant sales contract, was reverted to the Defendant.

Examining the reasoning of the judgment below in light of the relevant legal principles and records, the above fact-finding and judgment of the court below are justifiable, and there is no error in the rules of evidence against the defendant

2. Plaintiff’s ground of appeal

A. As to the assertion of misapprehension of the legal principle as to actual interest attribution

The unjust enrichment system imposes an obligation of return on a benefiting person based on the principle of equity and justice in cases where the benefiting person’s property gains have no legal ground. However, if the benefiting person has no substantial interest, the obligation of return cannot be imposed (see Supreme Court Decision 2010Da37325, 37322, Sept. 8, 201).

Based on the circumstances indicated in its reasoning, the lower court determined that the Defendant did not bear the obligation to return unjust enrichment against the said money on the ground that it is difficult to deem that the Gangnam-Nam did not have the actual benefit to the Defendant, out of the purchase price under the instant sales contract, KRW 553,530,00,000 paid by the Gangnam-Namn Association

Examining the reasoning of the judgment below in light of the relevant legal principles and records, the above fact-finding and judgment of the court below are justifiable. Contrary to the Plaintiff’s grounds of appeal, there were no errors in the misapprehension of legal principles as to the ownership of substantial profits, the effect of the representative

B. As to the assertion on misapprehension of legal principles as to the scope of exercise of simultaneous performance defense right

The lower court rejected the Plaintiff’s claim for damages on the ground that the Defendant was not liable for delay with respect to the sales price of the instant case and the obligation to refund damages.

Examining the reasoning of the lower judgment in light of the relevant legal principles and records, the lower court’s fact-finding and determination are justifiable, and contrary to what is alleged in the Plaintiff’s grounds of appeal, there were no errors by misapprehending the legal principles as to the scope of exercise

C. As to the assertion of misapprehension of legal principles as to the possessor's negligent acquisition and unjust enrichment

(1) A bona fide possessor shall acquire the fruits of an object in good faith (Article 201(1) of the Civil Act), and a person in bad faith shall return the fruits received (Article 201(2) of the Civil Act). An possessor is presumed to have occupied it in good faith (Article 197(1) of the Civil Act), and the presumption of good faith as to possession has not been broken up until then (see Supreme Court Decision 9Da6350, Mar. 10, 200). However, even if an occupant in good faith loses a lawsuit as to this right, he/she shall be deemed to have been a bad faith possessor from the time the lawsuit was brought (Article 197(2) of the Civil Act), and “when a lawsuit was brought” means when a copy of the complaint was delivered to the Defendant (see Supreme Court Decision 2013Da1891, Feb. 13, 2014; Supreme Court Decision 201Da639819, Jun. 19, 2014).

(2) Review of the lower judgment and the evidence duly admitted by the lower court reveals the following facts.

① On June 7, 2004, the Gangnam-gu Association concluded the instant sales contract with Nonparty 1 who representing the Defendant, and completed the registration of ownership transfer on March 16, 2005 in the name of the Gangnam-gu Association and the representative of the Gangnam church, respectively.

② On March 16, 2005, the Gangnam Association received a loan of the forest of this case as security and paid the balance of the purchase price and damages to the Defendant, etc., and constructed a church building on the ground among the forest of this case, and occupied and used the land of this case as the church site, the parking lot, and the access road.

③ On April 27, 2012, the Defendant filed a lawsuit seeking the registration of ownership transfer in the names of Gangnam Association and Nonparty 3, and the cancellation of the registration of establishment of superficies in the names of the Plaintiff, on the grounds that the instant sales contract concluded between Gangnam Association and Nonparty 3, and the Plaintiff, etc. was null and void, without a legitimate resolution of the clan general meeting.

④ The judgment dismissing the Defendant’s claim was rendered in the first instance court of the above lawsuit, but the appellate court rendered a judgment accepting the Defendant’s claim, and the above appellate judgment became final and conclusive by the Supreme Court’s judgment.

⑤ The lower court rejected the Defendant’s defense that it constitutes “non-payment” and, citing the reasoning of the first instance judgment, determined that “No evidence exists to acknowledge that the instant sales contract was concluded without a resolution of a clan general meeting and that it was null and void at the time it pays the purchase price and damages to the Defendant.”

(3) Examining the above facts in light of the legal principles as seen earlier, the court below should have determined the scope of liability after specifying whether the Gangnam Association was a bona fide possessor or a malicious possessor, or a malicious possessor at any time, in determining the Defendant’s counterclaim. Nevertheless, the court below did not review and determine the above facts and determined the scope of liability. Nonetheless, it erred by misapprehending the legal principles as to the possessor’s fault acquisition and unjust enrichment, thereby failing to exhaust all necessary deliberations, thereby adversely affecting the conclusion of the judgment. The Plaintiff’s ground of appeal pointing this out is with merit.

3. Conclusion

Therefore, the part of the judgment of the court below against the plaintiff is reversed, and that part of the case is remanded to the court below for a new trial and determination, and the defendant's appeal is dismissed. It is so decided as per Disposition by the assent of all participating

Justices Park Sang-ok (Presiding Justice)