Whether unjust enrichment is established in a case where Eul bank, upon receipt of a deposit in the bearer meal check from Eul bank, requested exchange to Byung bank and received the amount equivalent to the check from Byung bank's employees who did not receive the notice of non-payment due to mistake in the issuer's shortage of deposit (negative)

In a case where the non-party bank in receipt of a check to bearer from the Defendant requested the Plaintiff bank to exchange it with the Plaintiff bank, and the Defendant received the amount equivalent to the check from the non-party bank due to mistake of its employees, the non-party bank shall be deemed to have received the right on the check due to the delivery of the check, and thus, the non-party bank shall be deemed to have received the right on the check. Thus, as long as the defaulted check was not returned to the Defendant, even if the Defendant received the above amount, the amount equivalent to the check that the Defendant received cannot be deemed to have any profit without legal grounds, and thus, it shall not be constituted unjust enrichment.

Articles 523 and 741 of the Civil Code, Article 5 of the Check Act

Attorney Kim Jong-ju, Counsel for the plaintiff-appellant-appellee

Attorney Lee Tae-ju et al., Counsel for the defendant-appellant

Daegu High Court Decision 87Na1093, 1400 decided November 15, 198 (Counterclaim)

The appeal is dismissed.

The costs of appeal shall be assessed against the plaintiff (Counterclaim defendant).

As to the ground of appeal by the Plaintiff (Counterclaim Defendant)

In summary of the contents asserted in the grounds of appeal, the defendant's deposit of this case in the ordinary deposit account at the Busan Bank's Chungcheong Branch is transferred to the bank. Since the above check was returned in default, the transfer contract for the right on the check was cancelled, the plaintiff, who is the holder of the above check, can claim the return of the amount equivalent to the above check amount, in return and repayment of the check. If the plaintiff's obligation to return the check and the defendant's repayment are in the concurrent performance relationship, the plaintiff's claim for the refund of the check shall be included in the purport that the plaintiff's claim shall be returned by the refund of the check and repayment of the check. Thus, the court below should dismiss the plaintiff's claim only where it is confirmed that the plaintiff's claim had no obligation to return the check. However, the court below determined that the plaintiff cannot claim the return of the amount against the defendant as long as the plaintiff holds the check of this case. It erred by misapprehending the legal principles on restitution, which affected the conclusion that the plaintiff's claim for the refund of the amount against the defendant.

However, in light of the records, the plaintiff asserted that the plaintiff did not notify the plaintiff bank of the non-payment of the check of this case to the Busan Bank because the check of this case which the defendant deposited in the ordinary deposit account at the Busan Bank Chungcheong Branch and presented through the plaintiff to the payer through the plaintiff was not paid due to the lack of appointment ethics deposit, and the defendant received 64,650,000 won at the face value of the check of this case from the Busan Bank due to the error in the office affairs of its employees. Thus, the defendant did not have any legal ground. The plaintiff paid damages equivalent to the above amount by withdrawing the amount of the check amount from the standard deposit account of the Bank of Korea to the Busan Bank which paid the above amount to the Busan Bank, and therefore, it is clear that the defendant had a duty to return the amount of 64,650,000 won to the plaintiff and it is reasonable to claim restitution by the reason that the contract was cancelled on the check of this case between the plaintiff Bank and the defendant.

In addition, the court below held that even if the defendant paid the amount equivalent to the amount of the check in accordance with the clearing agreement to the Busan Bank's Busan Bank's Busan Bank's Busan Bank's Busan Bank's ordinary deposit account, the delivery of the check is subject to transfer of the right to the check. Thus, even if the check was refused to pay due to the issuer's shortage of deposit, the Busan Bank's clerical error that the check was settled by Busan Bank's Busan Bank's Busan Bank's employees, and the defendant paid the amount equivalent to the check amount to the defendant, as long as the check was not returned to the defendant, the amount equivalent to the check amount that the defendant received cannot be deemed as non-legal interest, and even if the plaintiff paid the amount equivalent to the check amount to the Busan Bank's Busan Bank's ordinary deposit account due to the error by its employees, the plaintiff can claim the issuer as the holder of the right on the check and can also claim the return of the amount that the plaintiff paid to the Busan Bank's Busan Bank.

In short, the theory of the lawsuit is nothing more than the argument derived from the erroneous understanding of the judgment of the court below. Violation of the precedent is not only premised on the above argument, but also can not be an appropriate precedent because it differs from the case in this case. The argument is groundless.

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

Justices Yoon Young-young (Presiding Justice)