2013 Gohap54867 Undue enrichment

○ ○

Law Firm Tae-il, Counsel for defendant-appellant

Attorney Kim Ho-ho

1. Maternum;

2. Incorporated foundation;

[Defendant-Appellant] Lee Jae-han, Counsel for defendant-appellant

February 27, 2014

March 20, 2014

1. The plaintiff's claims against the defendants are all dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

The primary purport of the claim: the defendants jointly and severally file an objection against the plaintiff 600,000,000 won and

Amount of 20% interest per annum from the day after the delivery of a copy of a petition for mediation to the day of complete payment.

H. D. Payment

Preliminary claim: Defendant 200,000,000 won for the plaintiff and the plaintiff's 11 January 2003

1. From the date of service of a copy of the application for modification of the purport and cause of the claim of this case, 5% per annum, c.

It shall be paid 20% interest per annum from the date of full payment to the date of full payment.

1. Basic facts

A. From Oct. 1994 to Oct. 2000, the Plaintiff operated a restaurant (hereinafter referred to as “the restaurant in this case”) with the trade name of “○○○○○○○” by leasing a 50m square meter of the first floor of reinforced concrete structure 341, 341, and the underground floor (hereinafter referred to as “the old building”) from the Defendant Seocho-dong, Seocho-gu, Seoul, Seocho-gu neighborhood living facilities with the first floor of reinforced concrete structure 341, 348, and the second floor of 148.

B. On August 18, 200, the Plaintiff had been performing the construction of expanding the building of this case with the Plaintiff’s funds after obtaining approval from the Defendant Lee Mandong, etc. The Plaintiff applied for a building permit to extend the 1st floor of the building of this case to 63 meters on December 18, 200, and to extend the 2nd floor 334.50 meters on March 334, 108, and 3rd 100 square meters on 3th 108, and the construction of the building of this case was conducted after obtaining the permission. The third floor of the building of this case was modified with the content of changing it to the rooftop. The Plaintiff finally obtained the approval of the use of the building of this case from the Seocho-gu office under the name of the Defendant Mandong on November 7, 2000, by extending the 1st floor of this case to 148 square meters on underground floor, 353.9 square meters on 2nd 331.50 square meters on 2nd 41.

C. On October 10, 200, the Plaintiff: (a) leased the new building of this case, extended from Defendant Earnex to Defendant Earnex, KRW 150,00,00, KRW 13,571,00 for the lease deposit; (b) from October 10, 2000 to October 9, 200 for the lease term; and (c) continued to operate the restaurant business of this case in the new building of this case; (d) on the other hand, the lessee after the expiration of the lease term ( October 9, 202) stated that the lease term belongs to the lessee with all rights to extend the building of this case.

D. On September 4, 2002, 200, Defendant 1 notified the Plaintiff of the fact that the term of lease stipulated in the instant lease agreement has expired, and that the said lease agreement will be terminated as of October 31, 2002. Meanwhile, the Plaintiff continued to operate the restaurant among the instant case from October 2003 to October 2003 after the notice of termination of the said lease agreement. Accordingly, the Defendant 1’s dumcium did not deliver the building to the Plaintiff on October 8, 2003 without paying the difference from January 28, 2003.

E. On September 30, 2009, Defendant 1, the Defendant Incorporated Foundation (hereinafter “Defendant ○○”) donated the instant new building, which is located in a square meter and its ground in Seocho-gu Seoul, Seocho-gu, Seocho-gu, Seoul, to the Defendant Incorporated Foundation (hereinafter “Defendant ○○”). On October 14, 2009, the ownership transfer registration under Defendant ○ was made on October 14, 2009 by Seoul Central District Court Decision 6524.

[Grounds for Recognition: Facts without dispute; Gap's statements in Gap's Evidence Nos. 1, 2, 5 through 7, 9 through 17, Eul's Evidence Nos. 1 through 4 (including branch numbers for those with numbers), witness leap, and the testimony of the largest ○○, and the purport of the whole pleadings]

2. The plaintiff's assertion

A. Defendant 1) At the time of the extension of the instant old building to the Plaintiff, Defendant 1 made a verbal promise to recover the cost of extension incurred by the Plaintiff through the recontract for a period of up to 10 years, although the period of the instant lease agreement was set at two years.

2) The Plaintiff believed the above promise and disbursed the cost of KRW 600 million, and expanded it to the new building of this case, and operated the restaurant of this case. Unlike the above promise through Kim○, the administrator of Manton notified that the lease contract of this case expires and the lease contract of this case is terminated.

3) Even after the notice of termination, the Plaintiff operated the intermediate restaurant of this case until October 2003, and the employee of the Defendant Ebrecknife shuts the entrance of the instant middle restaurant, which was no longer operated by his employee.

4) The Plaintiff and the administrator of knives knives knives knives kives kives kives kives kives kives kives kives kives kives kives kives kives kives kives kives kives kives kives kives kives kives kives kives kives kives kives kives kives kives kives kives kives kives kives kives kives kives kives kives kives kives kives kives kives kives kives kives kives.

B. Preliminary claim 1) Kim○○ had been in charge of the real estate owned by the Defendant, including the instant new building, as an administrator of the Defendant Madle Madle Madle Madle Madle Madle Madle Madle Madle Madle Madle Madle Madle Madle Madle Madle Madle Madle Madle Madle 1). In addition, the court's decision prohibiting entry and exit was made to prohibit the entrance of the instant restaurant, which the Plaintiff operated, from which the court's decision was made to prohibit occupancy and transfer of the instant new building was made. 3) The Plaintiff lost the ownership of the new building of the instant building and was unable to operate the instant restaurant any more, and the Plaintiff was liable for damages to the Plaintiff's property loss and damages to the Plaintiff's new Madle Madle Madle Madle Madle.

3. Determination

A. Judgment on the main claim

1) The Plaintiff’s funds for the extension of the instant new building owned by the Defendant 00 knives are as seen earlier.

On the other hand, comprehensively taking account of the overall purport of the arguments in the statements in Eul evidence Nos. 5 and 6, the plaintiff and Kim ○○ on December 24, 2003, the plaintiff and the plaintiff removed all house fixtures, fixtures, and facilities on the new building of this case until December 25, 2003, and deliver the new building of this case to the defendant Lee Man, and Kim ○ shall pay to the plaintiff 13,000,000 won. The plaintiff and the defendant Manton, which are operated by the plaintiff and the plaintiff, removed the house houses located on the new building of this case by December 25, 2003 and ordered the defendant ○○ to order the new building of this case and give up all rights to the building of this case at the same time.

In light of the above facts, even if the plaintiff paid KRW 600 million to the cost of expanding the new building of this case as alleged by the plaintiff, the plaintiff should be deemed to have waived his right to the cost of expanding the new building of this case according to the agreement of this case. Thus, the defendants cannot be deemed to have made unjust enrichment from the plaintiff. 2) Accordingly, the plaintiff asserted that the plaintiff entered into a contract at the time of the lack of agreement of this case, and the content thereof is revoked on the ground of legal invalidation.

Although the purport of the plaintiff's assertion is not clear, it is difficult to see that there is a legal basis to cancel an effective legal act on the ground of gambling.

Meanwhile, if the agreement in this case was concluded at the time of the plaintiff's poor condition, it may be deemed null and void as it constitutes an unfair legal act under Article 104 of the Civil Act. However, an unfair legal act may exist objectively in terms of payment and consideration, and a transaction which has lost balance as such, subjectively in terms of such a situation, may be based on an economic cause, i.e., "emergency difficulties", and may be based on mental or psychological causes. Whether the party was in imminent condition should be determined specifically by comprehensively taking into account various circumstances, such as his age, occupation, degree of education and social experience, property status, and degree of urgency of the situation at which the party was in imminent condition. On the other hand, even if the injured party was in imminent condition, there was no intention to use it, i.e., intent to use it, knowing the circumstances of the injured party.

If there is no significant imbalance between payment and consideration, or if there is no objective imbalance, unfair juristic act stipulated in Article 104 of the Civil Act is not established (see Supreme Court Decision 2010Da53457, Jan. 27, 201, etc.).

It is insufficient to recognize that the Plaintiff was in an imminent difficult situation at the time of the agreement in this case by only some of the statements in Gap evidence Nos. 5 through 7, witness leap, ○○, and last ○○○, and that the defendant blives of the defendant blives were aware of the Plaintiff’s imminent situation, and there is no other evidence to prove otherwise.

3) Therefore, the Plaintiff’s primary claim against the Defendants is without merit.

B. Determination on the conjunctive claim

갑 제18호증의 1 내지 5의 각 기재, 증인 윤○○, 최○○의 각 일부 증언에 의하면, 이 사건 중식당의 출입구가 2003. 11. 경 쇠사슬로 봉쇄됨으로써 원고는 이 사건 중 식당을 운영하지 못하게 된 사실을 인정할 수 있고, 이후 김○○이 이 사건 신건물에서 ' ※※※ ' 라는 상호로 중식당을 운영한 사실을 앞서 본 바와 같다 .

The issue of whether the Plaintiff suffered a loss equivalent to KRW 600 million for the extension of the new building of this case due to the tort of Kim ○○ Kim, was examined, and the facts of the above recognition are recognized by considering the overall purport of the arguments.

되는 다음 사정 즉, ① 피고 이◎◎이 원고에게 이 사건 임대차계약에서 정한 임대차기간은 비록 2년이지만 실제로는 10년 가량의 재계약을 통해 이 사건 신건물에서 계속이 사건 중식당을 운영할 수 있도록 약속했다는 점을 인정할 충분한 증거가 없는 점 ( 증인 최○○의 증언도 결국 원고로부터 그러한 이야기를 들었다는 것에 불과하다 ), ② 이 사건 임대차계약서의 부칙에 기재된 ' 임대기간 만료 ( 2002. 10. 9. ) 후 임차인은 2층 건물 증축에 관한 모든 권한을 임차인에게 귀속한다 ' 는 문구 중 ' 임차인에게 귀속한다 ' 는 내용은 통상 임대차계약의 종료에 따른 법률관계를 고려하면 ' 임대인에게 귀속한다 ' 는 내용의 오기로 보이는 점, ③ 만약 위 부칙에 기재된 문구가 오기가 아니라면 원고는 임대차계약의 재계약을 체결하였는지 여부 및 김○○의 불법행위로 중식당 영업을 못하게 되었는지 여부와 무관하게 여전히 이 사건 신건물의 증축과 관련한 권리를 피고 이◎◎에게 주장할 수 있는 점, ④ 그러나 원고는 이 사건 합의에 따라 피고 이© ◎측으로부터 133, 000, 000원을 지급받고 위 증축비용에 대한 권리를 포기하였기 때문에 더 이상 이 사건 신건물의 증축비용과 관련한 권리를 주장할 수 없게 된 점 ( 앞서 본 바와 같이 이 사건 합의가 무효라고 볼 수도 없다 ) 등을 종합하면, 가사 원고가 주장하는 바와 같은 김○○의 불법행위가 있었다고 하더라도 김○○의 불법행위로 인하여 원고가 이 사건 신건물의 증축비용 상당의 손해를 입었다고 인정하기 부족하고 달리 이를 인정할 증거가 없다 .

Therefore, the plaintiff's conjunctive claim against the defendant Lee Man-kil is without merit without examining the remainder of the claim.

4. Conclusion

Therefore, the plaintiff's claim against the defendants is dismissed as it is without merit. It is so decided as per Disposition.

Judges Lee Jong-ho

Judges Dogman

Judges Excursion Ship Co.