Masung-si (Attorney Kim Young-young, Counsel for the defendant-appellant)

Defendant 1 and one other (Law Firm LLC, Attorneys Hong Sung-sung et al., Counsel for the defendant-appellant)

July 8, 2011

Suwon District Court Decision 2009Du17168 Decided November 4, 2010

1. Of the judgment of the court of first instance, the part against Defendant 2 (Defendant in the judgment of the Supreme Court) corresponding to the money ordered to be paid below shall be revoked.

Defendant 2 pays to the Plaintiff 94,812,300 won with 5% interest per annum from August 8, 2009 to August 19, 201, and 20% interest per annum from the next day to the day of full payment.

2. The plaintiff's remaining appeal against the defendant 2 and the appeal against the defendant 1 are dismissed.

3. The total costs of the lawsuit between the Plaintiff and Defendant 2 shall be borne by Defendant 2, and the costs of the appeal against Defendant 1 shall be borne by the Plaintiff.

4. The portion of payment of the amount under paragraph (1) may be provisionally executed.

The decision of the first instance court is revoked. The defendant 1 shall pay to the plaintiff 22,935,880 won, and the defendant 2 shall pay 94,812,300 won with 20% interest per annum from the day after the delivery of the copy of the complaint of this case to the day of complete payment.

1. Basic facts

(1) During the period from May 10, 202 to December 24, 2008, Nonparty 1 embezzled KRW 1,271,660,810 through the account in the name of his family member or person in the name of his/her branch, and embezzled KRW 1,271,60,810 on 251, by receiving the erroneous payment from the account in the name of his/her family member or person in the name of his/her branch while he/she was working as a public official in Grade 6 of local tax affairs at the Seosung-dong Branch Office located in Ydongdongdongdongdong-dong, the documents were prepared as if there is a reason to return the erroneous or erroneous payment, and he/she embezzled KRW 1,271,60,810 through the transfer of the erroneous or erroneous payment. Of these, the details related to the Defendants are as shown in the separate embezzlement list. Defendant 1’s friendship and Defendant 2 notified Nonparty 1’s bank account number in the separate embezzlement column.

(2) Nonparty 1 was sentenced to four years of imprisonment with prison labor on July 22, 2009 by Suwon District Court 2009Gohap227, and appealed to Seoul High Court 2009No2026, but the appeal was dismissed on October 15, 2009, and the above sentence became final and conclusive on October 23, 2009.

(3) Nonparty 1 returned to the Plaintiff KRW 116,740,110 out of the above embezzlement amount of KRW 1,271,660,810. Nonparty 1 deposited KRW 100,000 in the future of the Defendant, along with the Suwon District Court gold Order No. 7324 on July 14, 2009.

[Ground of recognition] Gap evidence 1, 2, 7 through 10 (including paper numbers), Eul evidence 1, and the purport of the whole pleadings

2. Determination on the claim for damages against the Defendants

The plaintiff asserts that "the defendant was involved in the embezzlement of the non-party 1 because he was aware that the non-party 1 was using the bank account in the name of the defendants as embezzlement, and he was involved in the non-party 1's embezzlement because he was to use some of the money, so the defendants should be jointly and severally liable with the non-party 1 as a joint tortfeasor."

However, there is not sufficient evidence to acknowledge that the Defendants conspired with Nonparty 1 or attempted to make embezzlement or to know Nonparty 1’s embezzlement, on the sole basis of each of the statements in Evidence Nos. 7 through 10 (including paper numbers) and Evidence Nos. 14, and each of the financial information inquiries about the agricultural cooperatives of the first instance court, the head of the Agricultural Cooperatives of the Agricultural Cooperatives, the head of the IT branch of the National IT branch, and the head of the Korea Exchange Bank Business Support Center of Korea Exchange Bank. The Plaintiff’s above assertion is not correct, since there is no other evidence to acknowledge it.

3. Determination as to the loan claim against Defendant 2

The Plaintiff asserts that, “Defendant 2 borrowed money in the column of embezzlement (total sum) in the annexed Embezzlement from Nonparty 1 as the source of house repair cost and automobile purchase cost, Defendant 2 shall perform the obligation to repay the above borrowed money to the Plaintiff who subrogated Nonparty 1 who did not have financial ability.”

However, it is insufficient to recognize that Defendant 2 borrowed the above money from Nonparty 1 only with the statement of No. 8-2 and No. 9, and there is no other evidence to acknowledge it (for instance, according to each of the above evidence, Nonparty 1 appears to have donated the above money to Defendant 2), and the Plaintiff’s above assertion is not correct.

4. Determination on the claim for restitution of unjust enrichment against the Defendants

(1) The plaintiff's assertion

Of the amount embezzled by Nonparty 1, the amount stated in the column of embezzlement (individual) in the separate embezzlement statement in the separate embezzlement statement in the name of the Defendants was deposited into each bank account listed in the account number column in the separate embezzlement statement in the name of the Defendants. As such, the Defendants acquired each amount stated in the column of embezzlement (total sum) in the separate embezzlement statement in the separate embezzlement statement without any legal cause and thereby suffered loss to the Plaintiff. Accordingly, the Defendants must return the said amount to the Plaintiff as unjust enrichment.

(2) Facts of recognition

The sum of the amount of embezzlements against Defendant 1 and 2 in the attached Table Embezzlement is recognized as above. On the other hand, if the purport of the entire pleadings is added to the statement Nos. 1, 7, 8, and 9 (including the paper number), Eul evidence Nos. 1, and Eul evidence Nos. 3, the entire purport of the pleadings is added to the statement Nos. 1, 7, 8, and 9 (including the paper number), and Nonparty 2, the husband of Defendant 1, who is the non-party 1, has been confused with KRW 100,000,000, but the non-party 1 had already been seized by the creditors to fully repay it, but the total amount of the money transferred to Defendant 1’s account as indicated in the attached Table Embezzlement Nos. 1, 200,000,000,000 won, which were transferred to the non-party 2’s account, the sum of the money transferred to the non-party 1,000,0.

(3) Determination as to the claim against Defendant 1

The beneficiary who is the other party to the claim for return of unjust enrichment must be the party to the claim for return of unjust enrichment, and according to the facts acknowledged earlier, the non-party 2, who is not the defendant 1, actually benefited from the above money. Thus, the plaintiff's above assertion is not correct.

(4) Determination as to the claim against Defendant 2

According to the facts established earlier (at the second date for pleading), Defendant 2 was donated KRW 100 million from Nonparty 1 and became the actual beneficiary thereof. Meanwhile, there is no evidence to acknowledge whether Defendant 2 acquired the said money without negligence at the time of donation. However, according to the result of the Financial Information Inquiry with the Director of the Agricultural Cooperatives Association in the first instance trial, the remitter to the above Defendant was negligent in obtaining the said money from Nonparty 1, and was not negligent in obtaining the money from Nonparty 2, in view of the fact that the remitter was not the remitter, but in the above fact that he was not negligent in obtaining the money from Nonparty 1, the lower amount of remittance to Nonparty 2, who did not have been aware of the fact that he had been negligent in obtaining the money from Nonparty 1, the final remitter was not the remittance amount, but in the above fact that he was using the money in the name of Nonparty 3, 200,660,500 won.

Therefore, from August 8, 2009, the day following the delivery date of the copy of complaint of this case sought by the Plaintiff on unjust enrichment to the Plaintiff, Defendant 2 shall refund the Plaintiff 5% annual interest prescribed by the Civil Act until August 19, 2011, which is the date of adjudication of the court of first instance, and 20% interest per annum prescribed by the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings from the next day to the day of full payment (see, e.g., Supreme Court Decision 216,740,110 won, which is the sum of Non-Party 1’s total 216,740,10 won and the sum of the money donated to Defendant 2, which is the day following the delivery date of the copy of complaint of this case sought by the Plaintiff, to Non-Party 1’s voluntary consumption and the amount of the money repaid to Non-Party 1, which is more than that of the former amount of compensation for the damage incurred by Non-Party 1, 2015.

Defendant 2, at his own expense, procured the deposited money of KRW 100 million on July 14, 2009, and accordingly, asserted that the Plaintiff fulfilled his obligation to return unjust enrichment. However, even if the actual contributor of the deposited money is Defendant 2, it is difficult to view that the obligation to return unjust enrichment to the Plaintiff by Defendant 2 was extinguished due to the deposit made in the criminal trial proceedings against Nonparty 1 in the name of Nonparty 1 prior to the filing of the instant lawsuit. Accordingly, Defendant 2’s allegation is not correct.

5. Conclusion

Therefore, the plaintiff's claim against the defendant 2 is duly accepted within the extent of the prior recognition, and the plaintiff's remaining claim against the defendant 2 and the claim against the defendant 1 are dismissed. Since the part against the defendant 2 in the judgment of the court of first instance is so unfair that some conclusion is different, the part against the defendant 2 is accepted in part, and the corresponding part is revoked, and the defendant 2 is ordered to pay the above money to the plaintiff, and the remaining appeal against the defendant 2 and the appeal against the defendant 1 is dismissed. It is so decided as per Disposition.

[Attachment]

Judges Jo Hee-de (Presiding Judge) For the purpose of this Act