[1] The case affirming the judgment of the court below which held that the deposited money cannot be deemed as a juristic act contrary to social order, for the purpose of passive concealment of the so-called non-performing funds, which are property created by anti-social acts

[2] The case affirming the judgment of the court below which rejected the claim that the exchange price difference between the share price at the time of occurrence of the obligation to return and the share price at the time of occurrence of the obligation to return, and held that the amount equivalent to the civil legal interest as to the total share price at the time of occurrence of the obligation to return is equivalent to the total share price at the time of occurrence of the obligation to return, in case where a loss occurs to a person entitled to return as

[3] In a case where a person to receive a return of seized property renounces its ownership after seizure, whether the person is exempted from the duty to return seized property (negative)

[4] In a case where a criminal judgment not including a sentence of forfeiture of seized articles was rendered and confirmed, whether the duty to return the seized articles naturally arises to the prosecutor (affirmative)

[1] The case affirming the judgment of the court below which held that the deposited money cannot be deemed as a juristic act contrary to social order, for the purpose of passive concealment of the so-called funds which are property created by anti-social acts.

[2] The case affirming the judgment of the court below which rejected the claim that the exchange price difference between the share price at the time of occurrence of the obligation to return and the share price at the time of occurrence of the obligation to return, and held that the amount equivalent to the civil legal interest as to the total share price at the time of occurrence of the obligation to return is equivalent in case where a loss was incurred to a person entitled to return as a result of failure to return the seized goods, which became final and conclusive without

[3] Even if a person subject to return, such as a person subject to seizure, loses his/her right under the substantive law due to the waiver of his/her ownership after seizure, such person cannot affect the duty of the investigation agency to return the seized articles, and even if the investigation agency expresses its intention to waive the right to return under the Criminal Procedure Act, it cannot be deemed that the said person's duty to return is not effective and thus,

[4] Article 332 of the Criminal Procedure Act provides that a seizure of seized documents or articles shall be deemed to have been cancelled in the absence of a declaration of confiscation. Thus, if a judgment of confiscation is rendered without including a declaration of confiscation for certain seized articles, and a final and conclusive judgment became final, the prosecutor is obligated to return the seized articles to the presenter, owner, or other right holder as a matter of course. It does not result in a duty to return the seized articles to the prosecutor only

[1] Articles 103 and 746 of the Civil Act / [2] Articles 393, 750, and 763 of the Civil Act / [3] Articles 133 and 219 of the Criminal Procedure Act / [4] Article 332 of the Criminal Procedure Act

[2] Supreme Court Decision 94Da16786 delivered on October 12, 1995 (Gong1995Ha, 3721), Supreme Court Decision 2000Da1327 delivered on November 24, 200 (Gong2001Sang, 124) / [3] Supreme Court en banc Order 94Mo51 delivered on August 16, 1996 (Gong1996Ha, 2764), Supreme Court Order 97Mo25 delivered on April 16, 1998 (Gong198Ha, 2901), Supreme Court Decision 200Da27725 delivered on December 222, 200 (Gong201Sang, 344) / [34] Supreme Court Decision 194Nu13059 delivered on March 16, 195

Korea

Defendant (Law Firm Sejong, Attorneys Yellow-sik et al., Counsel for the defendant-appellant)

Seoul High Court Decision 99Na20102 delivered on June 13, 2000

All appeals are dismissed. The costs of appeal are assessed against each party.

1. The defendant's grounds of appeal are examined.

A. As to the grounds of appeal Nos. 1, 2, and 3

According to the reasoning of the judgment below, the court below rejected the defendant's assertion that, on December 3, 1992 and the 9th of the same month of the same month, the non-party Noh Jeong-ri agreed that the defendant will pay the above 10 billion won each to the defendant through the non-party, and manage the above 20 billion won in total at the time of delivery, but he will return it with the amount of bank interest at the time of demanding the return of the above Noh Tae-ri. The defendant's purchase of the above shares with the above money was based on the consent of the Noh Tae-ri, and the defendant merely bears the duty to return the above shares, etc., and there is no evidence to acknowledge it. In light of the records, the above fact-finding or decision of the court below is just, and there is no error of law such as violation of the rules of evidence, misunderstanding of legal principles as to the consumer fee agreement, or misunderstanding

B. Regarding ground of appeal No. 4

According to the reasoning of the judgment below, the court below rejected the defendant's assertion that although the defendant tried to return the above 20 billion won to the above old-age, he did not dispose of the shares at the time due to the old-age's refusal to receive it, and thus, the amount equivalent to the old-age price should be deducted from the defendant's obligation to return the above 20 billion won to the above old-age, since the defendant bears the obligation to return the interest to the above old-age with the above 20 billion won and its agreement, it cannot be deemed that the return of the above shares constitutes the provision of performance in accordance with the duty to return. However, according to the records, the defendant's intention to return the above 20 billion won to the old-age who would return the above 20 billion won to the old-age, it can be known that the old-age had delivered the above intent to return the above shares on several occasions by denying the existence of the claim itself. Thus, if the above circumstances exist, the defendant clearly expressed his intention to refuse the above old-age's refusal to return.

Therefore, the court below's fact-finding and erroneous determination that there was no legitimate provision of performance. However, since the object of delay in the receipt of the above know-how was the parties to the 20 billion won and the agreement thereon, damage caused by the price decline, such as the defendant's assertion, cannot be deemed as a damage within the proximate causal relation with the above body, the court below's decision rejecting the defendant's counterclaim against the damages equivalent to the price decline, is justified in its conclusion, and thus, the above error of the court below did not affect the conclusion of the judgment. The ground of appeal on this part is without merit.

C. Regarding ground of appeal No. 5

According to the reasoning of the judgment below, the court below held that even if there was an anti-social element in the formation process of 20 billion won delivered by the above Noh Jeong-ri's delivery to the defendant, the act of entrusting it to the defendant cannot be deemed anti-socially. The contents of the rights and obligations, which are the object of the legal act, are in violation of good morals and other social order, and even if the contents themselves are not in violation of anti-social order, they can be deemed as being in the nature of anti-social order because they are legally forced or their legal acts are associated with anti-social conditions or monetary consideration, and the motive of the legal act indicated or known to the other party can be considered as illegal consideration even if it is anti-social order (see, e.g., Supreme Court Decisions 9Da40522, Mar. 11, 1994; 9Da56833, Feb. 11, 200). The court below's decision that the above Noh Tae-ri's act had already been made in violation of social order.

D. Regarding ground of appeal No. 6

According to the reasoning of the judgment below, the court below rejected the defendant's assertion that the stocks, etc. confiscated are illegal seizure on the ground that they not only are related to criminal cases against the above labor union members, but also recognize the value of evidence in the case, and the necessity of seizure is recognized. In light of the records, the court below's fact-finding and judgment are just and acceptable, and there is no error in the misapprehension of legal principles as to the necessity of seizure as otherwise alleged in the defendant's ground of appeal. The ground of appeal

E. As to ground of appeal No. 7

According to the reasoning of the judgment below, the court below rejected the defendant's assertion that the amount of damages is equivalent to the difference between the share price and the share price as of the date of the closing of argument in the court below. The court below rejected the defendant's assertion that the amount of damages is equivalent to the difference between the share price as of the time of the occurrence of the duty to refund and the share price as of the date of the closing of argument in the court below, since the court below's judgment on confiscation of the shares confiscated by the defendant in the criminal case against the above labor union members became final and conclusive, and it is unlawful that the prosecutor did not refund the seized shares even though

Unless there exist special circumstances, the difference in the market price of shares is deemed special damages (see, e.g., Supreme Court Decision 94Da16786, Oct. 12, 1995). In this case, there is no evidence to deem that the Plaintiff knew or could have known the fact that the market price of the shares was decline at the time when the obligation to refund the shares occurred (as of April 17, 1997, the date a criminal judgment against Labor Management Management Act became final). Thus, even if the Plaintiff incurred damages equivalent to the market price of the shares due to the delay in its refund by the Plaintiff’s failure to dispose of the shares at an appropriate time due to the delay in its refund, the Plaintiff is not liable to compensate the Plaintiff for such damages.

Therefore, the court below's rejection of the defendant's assertion that damages should be paid to the difference in the market price of the above shares is just, and there is no error of law such as misconception of facts or misunderstanding of legal principles as to the scope of compensation for damages as otherwise alleged in the defendant'

2. The plaintiff's grounds of appeal are examined.

A. As to the ground of appeal on the waiver of ownership of seized articles

Even if a person subject to return, such as a person subject to seizure, loses his/her right under the substantive law by waiving his/her ownership after seizure, such failure to exercise any influence on the duty of the investigative agency to return the seized articles, and even if an investigative agency expresses its intent to waive the right to return under the Criminal Procedure Act, it cannot be deemed that the investigative agency’s requisite duty to return is not effective (see, e.g., Supreme Court en banc Order 94Mo51, Aug. 16, 1996; Supreme Court Decision 2000Da27725, Dec. 22, 2000).

According to the reasoning of the judgment below, the court below rejected the plaintiff's assertion that the defendant renounced ownership at the time of seizure of the above shares, and even if the prosecutor did not return it, it does not constitute a tort. Such decision of the court below is just, and there is no error of law by misunderstanding legal principles as to the waiver of ownership and the duty to return the seized articles as otherwise alleged in the plaintiff's ground of appeal

B. As to the ground of appeal regarding the application for return of seized articles and notification of return

According to Article 332 of the Criminal Procedure Act, a seizure shall be deemed to have been cancelled when there is no declaration of confiscation on the seized documents or articles. Thus, in a case where a judgment that does not include a declaration of confiscation on any seized articles is rendered and a final and conclusive judgment became final, the duty to return the seized articles to the presenter, owner, or other right holder naturally occurs to the prosecutor. It does not necessarily lead to a duty to return the seized articles only by any disposition such as a prosecutor’s decision on the return of a request for return by the right holder (see Supreme Court Decision 94Nu1401

According to the reasoning of the judgment below, the court below rejected the plaintiff's assertion that the plaintiff did not have a duty to return the above shares since it was not sentenced to a judgment of forfeiture of the above shares confiscated from the defendant in the criminal case against the above labor union, but the judgment became final and conclusive, but the prosecutor, who is the plaintiff's agency, continued to keep the above shares. According to the records, the court below rejected the plaintiff's assertion that the plaintiff did not have a duty to return the above shares. In the collection order of this case where the plaintiff asserted that he did not have a duty to return the shares, it is obvious that the plaintiff did not mention all the matters concerning the return of the seized shares in the collection order of this case, and the plaintiff's declaration of intention is recognized only as having to return shares if the plaintiff's request for return of shares was made on November 17, 1998, and it cannot be viewed as a lawful execution of the procedure for return since it was subject to the defendant's request for return. Accordingly,

3. Therefore, all appeals are dismissed, and the costs of appeal are assessed against each party. It is so decided as per Disposition by the assent of all participating Justices.

Justices Lee Yong-woo (Presiding Justice)