[Judgment of the court below]

Defendant 1 and two others (Seoul District Court Decision 2000Na8880 delivered on August 2, 2000)

November 8, 2007 (Defendant 1, 3)

Ad Hoc (Defendant 2)

1. As to Defendant 1 and 2’s joint and several liability amounting to KRW 2,200,000,000 for the Plaintiff,

A. Defendant 1 shall pay 5% interest per annum from November 10, 2006 to November 29, 2007, and 20% interest per annum from the next day to the day of full payment;

B. Defendant 2: (a) 5% per annum from March 16, 2002 to February 1, 2007; and (b) 20% per annum from the next day to the date of full payment;

sub-payment.

2. The plaintiff's remaining claims against the defendant 1 and the defendant 3 are dismissed, respectively.

3. Of the costs of lawsuit, 1/10 of the portion arising between the Plaintiff and Defendant 1 shall be borne by the Plaintiff, and the remainder by Defendant 1, and the portion arising between the Plaintiff and Defendant 2 shall be borne by Defendant 2, and the portion arising between the Plaintiff and Defendant 3 shall be borne by

4. Paragraph 1 can be provisionally executed.

Order Nos. 1-B and 1-3 shall pay to the Plaintiff 2,200,000,000 won jointly and severally with Defendant 2 as well as 5% per annum from March 16, 2002 to the service date of the copy of the complaint of this case, and 20% per annum from the next day to the day of full payment.

1. Basic facts

A. From 1986 to 198, Defendant 1 was appointed as the Deputy Secretary General of the National Assembly, from 1990 to 1992, from 192 to 1994, as the Secretary General of the Constitutional Court from 1992 to 1994, and was employed as an attorney-at-law since 1994. On February 18, 2000, Defendant 1 was appointed as the ○○ Party candidate for the election of the 16th National Assembly members, and was registered as a member of the National Assembly until March 26, 200, and was elected on April 13, 200 and was elected as a member of the National Assembly until May 204.

B. On March 28, 200, the Plaintiff received a written request for funds from Defendant 1 (Evidence No. 1) through Defendant 2, and remitted KRW 500 million following the receipt to an account in the name of Nonparty 3 designated by Defendant 1. Likewise, Defendant 2 received a written request for funds from Defendant 1 (Evidence No. 4) on April 2, 2000, and issued KRW 500 million in cash to Defendant 3, who is Defendant 1’s children on the following day. Likewise, Defendant 2 received a written request for funds from Defendant 1 (Evidence No. 7) on May 25, 200, and transferred KRW 1 billion to Defendant 1’s account in the name of Nonparty 4 designated by Defendant 1.

C. In addition, on March 16, 2002, the Plaintiff received a loan certificate from Defendant 1 while delivering KRW 1.2 billion (1.2 billion cashier’s checks) to Defendant 1 upon receiving a request for funds of KRW 1.2 billion directly from Defendant 1, and received a refund of KRW 1.2 billion among them.

D. Meanwhile, Defendant 1 sent several letters to the Plaintiff. (1) On May 1, 2003, Defendant 1 stated that “I will have the best to deal with the work for four months, but did not do so. I will have the detailed explanation to the directors.” (2) On May 20, 2004, I will complete the issue of special funds which has not been processed for the past four years by 10 billion won until June 10, 2004, “I will have the maximum amount of KRW 100 billion for five consecutive years,” and “I will have the highest amount of KRW 200 billion for five consecutive years,” and “I will have the highest amount of KRW 100 billion for five consecutive years, 100,000,000,0000,000,000 won for five consecutive years, 200,000,000 won for five consecutive years, and will have the total amount of KRW 320,000,00,000.

E. In addition, on June 9, 2005, Defendant 1 prepared and rendered to the Plaintiff a letter of performance assurance (Evidence 20) stating “The amount to be repaid is KRW 50 million in March 200, KRW 500 million in April 200, KRW 500 million in May 200, KRW 1 billion in 2000, KRW 200 million in April 200, KRW 2200 in 200, and KRW 2.2 billion in 200.”

【Facts without any dispute, Gap’s 1 through 20 evidence (including each number), Eul’s 20 evidence, the purport of the whole pleadings

2. Determination as to the claim against Defendant 2

(a)the basis for the request;

Defendant 2: (a) Notwithstanding the absence of an intent or ability to deliver the old currency under the pretext of exchanging the old currency (illegal funds) at a price lower than its face value, Defendant 2 falsely stated that, around February 2000, Defendant 1 would be Defendant 1 would engage in the exchange of the old currency with the old currency, and that, at present, Defendant 2 would exchange the old currency with the new currency with the old currency at a price lower than its face value. (b) On February 16, 200, Defendant 2 would have the Plaintiff receive KRW 10,000 from Defendant 1 by exchanging the old currency (illegal funds) with Defendant 10,000 won in exchange for the Plaintiff’s cash. (c) On March 29, 2000, Defendant 1 would have the Plaintiff pay KRW 500,000,000 to Defendant 1 for the exchange of the old currency with the total amount of KRW 31,00,000,000,000,00,00.

Therefore, Defendant 2 is obligated to refund to the Plaintiff 2.2 billion won as compensation or unjust enrichment for tort, and as requested by the Plaintiff, 5% per annum under the Civil Act from March 16, 2002 to February 1, 2007, which is the date of service of the copy of the complaint of this case against Defendant 2, and 20% per annum under the Act on Special Cases concerning the Promotion, etc. of Legal Proceedings from the next day to the date of full payment.

(b) Grounds for determination: Judgment without holding any pleadings (Articles 208(3)1 and 257 of the Civil Procedure Act);

3. Determination as to the claim against Defendant 1

A. The parties' assertion

(1) The plaintiff's assertion

(A) In collusion with Defendant 2 and 3, Defendant 1 did not have an intention or ability to deliver the old currency even if he received the old currency under the pretext of exchanging the old currency at a price below its face value. However, around February 200, Defendant 1 stated to the Plaintiff as follows: “In the process of exchanging the old currency with the old currency, the former President is holding the old currency, and currently exchanging it with the new currency, but he will exchange it with the current 60% of the old face value, and he will exchange it with the 60% of the old face value.” The Plaintiff received a total of KRW 3.2 billion from the Plaintiff by March 16, 2002 as the exchange of the old currency and returned only one billion among them, and thereafter, he did not deliver the old currency to 60% of its face value or receive cash, and thereby, he is jointly and severally liable with Defendant 2 and the Plaintiff to pay damages for delay from 202.26 billion won to the Plaintiff.

(B) At least Defendant 1 recognized that he received money from the Plaintiff in connection with the exchange of old currency several times through a letter. Since a plan for exchange of old currency was nonexistent and there was no legitimate title to hold that plan, Defendant 1 is obligated to return it as unjust enrichment.

(C) In addition, Defendant 1 explicitly agreed to return 2.2 billion won to the Plaintiff several times from February 5, 2005 to June 9, 2005, and thus, Defendant 1 has the obligation to return it pursuant to the above return agreement.

(2) Defendant 1’s assertion

(A) Defendant 1 did not deceiving the Plaintiff for the purpose of exchanging old currency, but only received KRW 2 billion as political funds from March 16, 200 to May 2 of the same year after being elected as a member of the National Assembly during the preparation for election of a member of the National Assembly or after being elected as a member of the National Assembly. On March 16, 2002, Defendant 1 borrowed KRW 1.2 billion from the Plaintiff and repaid that amount.

(B) If the Plaintiff, as alleged by the Plaintiff, paid KRW 3.2 billion to Defendant 1 for the exchange of old currency, this provision provides money for an illegal purpose, such as the acquisition of illegal currency, and thus, it cannot be claimed against Defendant 1 by itself as illegal consideration.

(C) On February 5, 2005, Defendant 1 proposed that the Plaintiff would stop any more violence and return the principal to the Plaintiff on the condition that the Plaintiff would not cause water as a matter of political fund. However, the Plaintiff did not enter into a return agreement upon the Plaintiff’s demand that the Plaintiff pay KRW 25 billion as Doluri, and the return agreement made on June 9, 2005 was already made in the state of coercion caused by the Plaintiff’s intimidation, confinement, etc., and thus, it has no effect.

Even if the foregoing return agreement is valid, insofar as the Plaintiff provided money for the illegal purpose of acquiring illegal money, the Plaintiff’s claim for return pursuant to the return agreement with Defendant 1 is not allowed as it seeks the return of illegal consideration.

B. Determination

(1) Determination as to a claim for damages due to a tort

The evidence submitted by the plaintiff (in particular, the statement of evidence Nos. 25 through 28, witness testimony of the non-party 1) alone is insufficient to recognize the fact that the defendant 1 conspireds with the defendant 2 to exchange the old currency with the plaintiff and deceiving the plaintiff to acquire KRW 2.2 billion from the plaintiff as alleged by the plaintiff, and there is no other evidence to acknowledge this otherwise. [In light of each of the evidence Nos. 28, 30, 16-8, and 20 of No. 16-20, the plaintiff filed a complaint against the defendants as a violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud) on the ground that the defendants acquired 2.2 billion won for exchange of old currency, the defendant 2 was dismissed due to the unknown whereabouts of the defendant 2, and the defendant 1 was charged with the above judgment of the court of first instance (Seoul District Court Decision 2006Da14690, Feb. 25, 2002).

(2) Determination on the claim for restitution of unjust enrichment

(A) The nature of KRW 3.2 billion paid by the Plaintiff

In full view of the purport of the arguments in Gap evidence Nos. 25 and Eul evidence Nos. 20, since 1999, the plaintiff attempted to exchange USD 20 billion which is difficult to exchange or to exchange bonds held by the former political parties. After that, the defendant 2 introduced defendant 1 to attempt to exchange old currency held by the former political parties while explaining the exchange of old currency to the plaintiff. On the other hand, the defendant 1 received a total of KRW 2 billion from the plaintiff as political funds, and the defendant 200,000,000,000 won to the plaintiff on June 20, 200, the defendant 200,000 won to receive money from the plaintiff through the former political parties, and the defendant 20,000,000 won to receive money from the plaintiff 2,000,000 won to return the remaining amount to the plaintiff from the above 2 billion won to the defendant 2,000,000 won to the plaintiff.

As seen earlier, in light of the contents of each letter (No. 15 and 16) sent by Defendant 1 to the Plaintiff, Defendant 1’s expression “special funds,” and “special goods prices,” etc. on Defendant 2’s own, are merely written upon Defendant 2’s request. However, there is no evidence to acknowledge it, rather, it is difficult to find out the special reasons for Defendant 1 to prepare correspondence as upon Defendant 2’s request, and the term “special funds” was used as members of the National Assembly around May 2004, and thus, it appears that the Plaintiff would have received KRW 200 million from Defendant 1 to the Plaintiff without being aware of the fact that it was necessary to exchange money of KRW 30 million from Defendant 2,000,000,000,000,000,000,000,000,000 won, and it appears that the Plaintiff would have received KRW 100,000,00,000 from Defendant 2,00.

Therefore, it is reasonable to view the above KRW 3.2 billion as being paid for the purpose of exchange with the funds illegally created by the old political right.

(B) Unlawful cause benefits.

The plaintiff asserts that as long as the old currency exchange plan was eventually non-consumed, the defendant 1 has no legitimate title to hold it, and that there is a duty to return it as unjust enrichment.

However, according to Article 746 of the Civil Act, if a person pays property or provides labor due to an illegal cause, he/she is not entitled to demand the return of such profit. Here, "illegal cause" refers to the case where the act which caused it violates good morals and other social order (see Supreme Court Decision 83Da430, Nov. 22, 1983). As recognized in the above paragraph (a), the Plaintiff paid KRW 3.2 billion to Defendant 1 for the purpose of exchange with non-funds created by the former political right. This constitutes a case where the purpose of this is in violation of good morals and other social order, and thus, even if Defendant 1 did not have a legitimate title, the Plaintiff cannot claim the return of the money as unjust enrichment to Defendant 1. Thus, the Plaintiff's above assertion is without merit.

(3) Determination on the claim for return under a return agreement

(A) The facts acknowledged in paragraph (1) clearly agreed that Gap shall return 2.2 billion won to the plaintiff several times between February 5, 2005 and June 9, 2005, and the defendant 1 shall be jointly and severally liable to pay 2.2 billion won to the plaintiff pursuant to the above return agreement with the defendant 2 pursuant to the above return agreement.

(B) Defendant 1 asserted that, when the Plaintiff demanded payment of KRW 25 billion, Defendant 1’s refusal of the proposal on February 5, 2005 and the return agreement on February 5, 2005 was not concluded, or that the agreement on June 9, 2005 was already cancelled due to intimidation, confinement, etc. of the Plaintiff, and that it was not effective. However, there is insufficient evidence to acknowledge that the Plaintiff did not have any other evidence to prove that it was not possible to use the Plaintiff’s personal seal to exchange the Plaintiff’s personal seal on September 1, 2004, and Defendant 1’s personal seal issued to the Plaintiff on June 25, 205 (including the serial number), and there was no other evidence to prove that it was not possible for the Plaintiff to use the personal seal to exchange the Plaintiff’s personal seal on his own, and to use it on his own by Nonparty 1, 205.

(C) In addition, Defendant 1 asserts that even if his return agreement is valid, Defendant 1’s claim for return under the return agreement with Defendant 1 is not allowed as it seeks to return illegal consideration.

On the other hand, a special agreement is valid unless the return of the payment itself or in lieu of the payment itself or by an agreement separate from the act of the cause of the payment and the return of the payment in lieu of the payment, unlike the case where the person who provided the payment for the illegal cause claims the return of the unjust enrichment (see Supreme Court Decision 76Da2138, Nov. 23, 1976, etc.). Here, whether the return agreement itself is null and void should be determined based on whether the return agreement itself is in violation of Article 103 of the Civil Act, such as the circumstances leading up to the original illegal cause of the payment, the degree of the illegality of both parties, and the process of concluding the return agreement, comprehensively taking into account all the factors necessary to determine the violation of Article 103 of the Civil Act, such as the purpose of the return agreement itself, and whether the return agreement is null and void in violation of social order.

In the instant case, Defendant 1’s assertion and proof on the effect that the return agreement itself is null and void in violation of the social order are nonexistent. Since the above return agreement is deemed reasonable as it is for the interruption or interruption of the illegal objective, namely, exchange of old currency, and thus, it appears reasonable in society, Defendant 1’s assertion that the Plaintiff’s claim for return based on the return agreement is not allowed as a claim for return of illegal consideration.

C. Sub-decision

Therefore, pursuant to the above repayment agreement with Defendant 2, Defendant 1 is jointly and severally liable to pay damages for delay at the rate of 2.2 billion won to the Plaintiff and its 2.2 billion won, including the Plaintiff’s intent to claim the return of the instant complaint against Defendant 1, from November 10, 2006 to November 29, 2007, which is the day following the day when the copy of the instant complaint was delivered to Defendant 1, to Defendant 1, and at the rate of 5% per annum as stipulated in the Civil Act, from November 29, 2007, and 20% per annum as stipulated in the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings, from the next day to the day of full payment (the Plaintiff claimed damages for delay from March 16, 202, which is the last day of the payment date, but Defendant 1 cannot be deemed to have delayed the duty to return from this point before it was agreed upon by Defendant 1, and the Plaintiff’s claim for damages for delay is without merit.

4. Determination as to the claim against Defendant 3

The plaintiff asserts that the defendant 3, who is the child of the defendant 1, is indicated as an agent in the written request for funds (Evidence A No. 4) on April 2, 2000, and that he, in collusion with the defendant 1 and 2, by directly receiving KRW 500 million in cash from the plaintiff on April 3, 200 and delivering it to the defendant 1, he acquired 2.2 billion won in exchange for money in the old sphere by deceiving the plaintiff.

The facts that Defendant 3, upon Defendant 1’s instruction, she saw up to 2-3 paper gamblings that were cashed in a bank parking lot located in Seoul on April 3, 2000, brought up to the Gyeongcheon-si District of Busan District of Gyeongcheon-si with Defendant 1, there is no dispute between the Plaintiff and Defendant 3, and according to the statement of evidence No. 4, Defendant 1 stated Defendant 3 as his/her agent in the written request for the Fund of April 2, 2000, but it is difficult to recognize that Defendant 3 was deceiving the Plaintiff solely on the above facts of recognition, and there is no other evidence to prove otherwise.

Therefore, the plaintiff's claim against the defendant 3 is without merit.

5. Conclusion

Thus, the plaintiff's claim against the defendant 2 is justified, and the claim against the defendant 1 is accepted within the scope of the above recognition, and the remaining claim against the defendant 1 and the claim against the defendant 3 are dismissed as it is without merit.

Judges Kim Woo (Presiding Justice)