[1] Whether a reimbursement against a free will and a claim for restitution of unjust enrichment are lost (negative)

[2] The case reversing the judgment of the court below that the act of repayment exceeding the secured debt amount is against the free will while the auction procedure for the real estate is in progress

[1] In a case where the payer has paid at will with knowledge of the absence of the obligation, the payer cannot claim the return of the debt as a non-performance under Article 742 of the Civil Code. However, even if the payer knew of the absence of the obligation, if there are circumstances such as forced repayment or forced repayment in order to avoid de facto damage caused by the refusal of payment, etc., and if it is deemed that the repayment was made against the free will, the payer does not lose

[2] The case reversing the judgment of the court below that the act of repayment exceeding the secured debt amount is against the free will while the voluntary auction procedure for real estate is in progress

[1] Article 742 of the Civil Code / [2] Article 742 of the Civil Code

[1] Supreme Court Decision 87Da432 delivered on February 9, 1988 (No. 36-1, 29)

Plaintiff (Law Firm Sung-nam General Law Office, Attorneys Choi Jong-young et al., Counsel for plaintiff-appellant)

Defendant

Suwon District Court Decision 2002Na3478 delivered on June 27, 2003

The part of the lower judgment against the Defendant is reversed, and that part of the case is remanded to the Suwon District Court Panel Division.

1. According to the reasoning of the judgment below, on September 28, 199, the plaintiff entered into a contract with the defendant as to the right to collateral security of 101m2 and 159m2 ( Address 1 omitted) in Gwangju City (hereinafter referred to as "the real estate of this case") with the defendant on September 28, 199, and issued a promissory note with the defendant with a face value of 70 million won. On the following day, the court below rejected the defendant's claim for the right to collateral security (hereinafter referred to as "right to collateral security of this case"), on the ground that it is difficult for the defendant to claim the return of the above amount exceeding 60m2 to the defendant's debt of this case, and the defendant did not pay the above amount exceeding 70 million won to the defendant for the right to collateral security of 40m20,000 won and the defendant did not claim for the return of the remaining amount of debt of this case to the defendant on March 29, 200.

2. A. In light of the records, the court below's measure as to the determination of the above secured debt amount is just and acceptable, and there is no violation of the rules of evidence in finding the facts against the rules of evidence.

B. However, it is difficult to accept the lower court’s rejection of the Defendant’s defense of non-performance of debt.

In a case where the payer has paid at will even though he had no knowledge of the non-performance, he cannot claim the return of the debt as a non-performance under Article 742 of the Civil Act. However, even if the payer was aware of the non-performance, if there are circumstances which can be deemed to have been made against the free will, such as forced repayment or forced repayment in order to avoid de facto damage caused by the non-performance, the payer shall not lose his right to claim the return (see Supreme Court Decision 87Da432, Feb. 9, 198, etc.). However, in this case, in the amount of KRW 70 million paid by the Plaintiff to the Defendant, it cannot be said that the portion of the non-performance exceeding KRW 54 million was made against the free will of the Plaintiff, and therefore, it cannot be said that the Plaintiff did not lose his right to claim the return.

First of all, the court below seems to have been conducted against the free will by putting emphasis on the fact that the plaintiff's voluntary auction on the real estate of this case was in progress (see Supreme Court Decision 80Da71, Nov. 11, 1980). However, it does not appear that there is no evidence to view the above real estate as the court below's decision (see Supreme Court Decision 80Da71, Nov. 11, 1980), and rather, according to the records, the plaintiff asserts that the real estate of this case has a value of 200 million won or more (see Supreme Court Decision 15Da15, Nov. 6, 200, which was immediately after the withdrawal of the above auction). In light of the fact that the defendant, at the auction procedure of this case, reported the successful bid price of this case to the defendant with the highest price of KRW 41,00,000, which was much less than the actual value of the real estate of this case alleged by the plaintiff, and barring any special circumstances, the defendant could have claimed the above real property price of this case as the defendant.

Ultimately, the court below accepted part of the plaintiff's claim for return of unjust enrichment of this case and ordered the defendant to return KRW 16 million shall be deemed to have committed an unlawful act that affected the conclusion of the judgment by failing to exhaust all necessary deliberations or by misunderstanding the legal principles as to non-payment of debt, and the argument in the grounds of appeal that seems to include such assertion is reasonable

3. Therefore, the part of the lower judgment against the Defendant is reversed, and that part of the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Shin Hyun-chul (Presiding Justice)