Kimcheon-2017-Thap-15426 ( October 13, 2017)

Obligations to return unjust enrichment and delay damages

The defendant is obligated to pay to the plaintiff 31,518,660 won with 5% per annum as stipulated in the Civil Act and 15% per annum as stipulated in the Act on Special Cases concerning Expedition, etc. of Legal Proceedings from the next day to the day of receiving a notice of tax payment stating the plaintiff's expression of intent to request the performance, and damages for delay calculated from the next day to the day of complete payment.

Article 30 of the National Tax Collection Act: Revocation and Restoration of Fraudulent Act

2017Na25216 Unlawful gains

- Appellants

Korea

AustriaOOOOCO

oly 13, 2017

2018.03.07

2018.03.28

1.The judgment of the first instance shall be modified as follows:

The defendant shall pay to the plaintiff KRW 31,518,660 as well as to October 13, 2017 as from February 17, 2017.

shall pay 5% per annum and 15% per annum from the following day to the date of full payment.

2. All costs of the lawsuit shall be borne by the defendant.

3. Paragraph 1 can be provisionally executed.

The appeal shall be filed as follows: (a) it shall be filed by the plaintiff by reducing the purport of the appeal more than that of the first instance court; (b)

The purpose of the Gu is to reduce the purpose of the Gu.

1. Basic facts

The reasons for this part are as follows, and except for the addition of Gap evidence Nos. 9 and 10 to the grounds for recognition, it is identical to the reasons for the judgment of the court of first instance as stated in Paragraph 1 of Article 420 of the Civil Procedure Act.

○ Notice of Revision to Transfer Income Tax.

On January 7, 2017, the Plaintiff imposes an amount equivalent to the instant refund paid erroneously to the Defendant.

The decision to correct the income tax was made, and the tax notice was served on February 16, 2017 to the defendant."

2. Determination

According to the above facts, the plaintiff deposited the refund money of this case pursuant to Article 248(1) of the Civil Execution Act, and thus the defendant's claim for the refund money of this case extinguished, and the plaintiff exempted the defendant from the obligation to pay the refund money of this case.

Nevertheless, without any legal ground, the defendant receives the amount equivalent to the refund of this case from the plaintiff.

Since the defendant gains profit by holding it, he is obligated to return the refund of this case and its delay damages to the plaintiff (the defendant merely paid the refund of this case due to the plaintiff's gross negligence, and it cannot respond to the plaintiff's claim because there is no reason attributable to the defendant. However, the defendant's obligation to return unjust enrichment is caused by the extinguishment of legal cause that the defendant received the refund of this case, and it is irrelevant to the existence of the plaintiff's negligence or the cause attributable to the defendant, and the above argument

Therefore, the Defendant is obligated to pay to the Plaintiff 331,518,660 won with 5% per annum as stipulated in the Civil Act from February 17, 2017 to October 13, 2017, the date following the day when the Plaintiff was served with a tax payment notice stating the Plaintiff’s expression of intent to demand performance, as well as damages for delay calculated by the rate of 15% per annum as stipulated in the Act on Special Cases concerning Expedition, etc. of Legal Proceedings from the next day to the day of full payment.

3. Conclusion

If so, the plaintiff's claim is justified, and the judgment of the court of first instance which partially differs from this conclusion is unfair, so the plaintiff's appeal shall be accepted and the judgment of the court of first instance shall be modified as above.