In a case where a contract which forms the legal relationship between a abortion and a summary in a contract for a third party is terminated, whether the abortion can seek the return of the contract against the third party on the grounds of restitution based on the termination of the contract or unjust enrichment for the benefit already provided to the third party (negative)

Articles 539, 548, and 741 of the Civil Act

Plaintiff (Counterclaim Defendant) (Attorney Song Jin-jin et al., Counsel for the plaintiff-appellant)

Defendant-Counterclaim (Attorney Lee In-hee, Counsel for defendant-Counterclaim)

Gwangju District Court Decision 2002Na2443, 2450 Decided December 31, 2004

The appeal is dismissed. The costs of appeal are assessed against the plaintiff (Counterclaim defendant).

We examine the grounds of appeal.

1. According to the reasoning of the judgment below, the court below acknowledged the facts of the judgment after comprehensively taking account of the adopted evidence, and determined that the plaintiff (a counter-party defendant; hereinafter referred to as "the plaintiff") purchased the goods of this case from the non-party, and the purchase price was to be paid to the defendant in lieu of the payment of the purchase price to the non-party by paying the amount equivalent to the debt that the non-party bears to the defendant, and that the non-party's debt against the defendant is extinguished by the plaintiff's payment of the purchase price to the defendant as above. Thus, the agreement on the payment method of the purchase price of this case has both basic relations (compensation relationship) between the plaintiff and the non-party and the non-party (a third party) with the plaintiff as a summary of the plaintiff, the non-party, and the defendant as a third party, and at the same time, the above agreement constitutes a contract for a third party to have the defendant acquire the right to directly claim the payment to the plaintiff in accordance with the agreement on the payment method of this case.

According to the records, the fact-finding and decision of the court below is just, and there is no error of law by misconception of facts against the rules of evidence.

2. In addition, the court below revoked the sales contract of this case on the ground that the right to transfer ownership of the goods of this case was omitted due to the acquisition of the ownership of the goods of this case and the non-party's obligation to transfer ownership of the goods of this case. As to the plaintiff's principal claim that the defendant is obligated to return 26 million won of the sales contract of this case paid by the plaintiff as restitution following the cancellation, the contract of this case was lawfully rescinded. However, even if the sales contract of this case which constitutes the basic relationship as above was lawfully rescinded, the plaintiff's payment against the defendant is only a claim based on the relationship between the plaintiff and the non-party as the party to the sales contract of this case and the non-party, which constitutes the basic relationship, and thus, it is reasonable to view that the return of unjust enrichment of this case was made between the plaintiff and the non-party as a party to the sales contract and the non-party, and the basic relationship between the plaintiff and the non-party as a party to the contract can not be seen as being in violation of the principle of restitution of unjust enrichment between the plaintiff and the third party.

In a case where a contract which forms the legal relationship between the abortion and the summary in the contractual relationship for a third party is rescinded, the liquidation of the contractual relationship should be done between the abortion and the summary of the contract. Thus, even if the abortion has already been provided to a third party, the abortion may not seek the return of the contractual relationship against the third party on the grounds of restitution according to the termination of the contract or unjust enrichment, barring any special circumstance.

The above judgment of the court below is just in accordance with the legal principles as seen earlier, and there is no error of law by misapprehending the legal principles as to the cancellation of contract in favor of a third party.

3. In the contract for a third party, the third party does not fall under the third party under the proviso of Article 548(1) of the Civil Act which is protected at the time of the termination of the contract, but it does not necessarily require the duty of restoration due to the termination of the contract. In addition, with respect to the unpaid benefits, the abortion may refuse payment to the third party as a defense pursuant to the termination of the contract pursuant to Article 542 of the Civil Act, but the same legal principle shall not apply to cases where the third party seeks restitution due to the termination of the contract for the benefits already paid. Therefore, the court below's decision on the main claim and counterclaim is just in the same purport, and there is no error in the misapprehension of the grounds for appeal by the plaintiff.

4. Therefore, the appeal is dismissed, and all costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Hong-hoon (Presiding Justice)