Whether reimbursement against the free will and the claim for restitution of unjust enrichment have been lost or not.

The non-performance under Article 742 of the Civil Act is established only when the payer has voluntarily paid the debt with knowledge that the debt is not a debt, and even if he knows that the debt is not a debt, if there are circumstances which can be deemed to have been done against his own free will, such as the repayment was forced, or the repayment was made inevitably in order to avoid the de facto damage caused by the refusal of performance, etc., the payer shall

Article 742 of the Civil Act

Supreme Court Decision 67Da1683 delivered on September 26, 1967, 76Da2212 Delivered on December 14, 1976

Attorneys Namyang-gu et al., Counsel for the defendant-appellant

Korea Electric Power Corporation et al., Counsel for defendant-appellant

Seoul High Court Decision 87Na1687 delivered on October 15, 1987

The appeal is dismissed.

The costs of appeal are assessed against the defendant.

1. Judgment on the ground of appeal No. 1

The court below erred by misapprehending the facts against the rules of evidence and rejecting the defendant's assertion on the grounds that the parties did not assert, but it does not constitute a ground for appeal as stipulated in Article 11 (1) of the Act on Special Cases concerning the Promotion, etc. of Legal Proceedings.

2. Judgment on the second ground for appeal

Although it is sufficient to recognize that the plaintiff has taken over the non-party company's obligation to pay the overdue electricity charges against the non-party company, the court below's rejection of the defendant's assertion that the plaintiff took over the non-party company's obligation is inconsistent with its reasoning, and even if it is not so, the plaintiff cannot claim the return of the above overdue electricity charges since the plaintiff was aware that the non-party company did not pay the above overdue electricity charges to the defendant. However, the court below held that the plaintiff can claim the return of the above repayment since the plaintiff's repayment was not a voluntary repayment because the defendant would not supply the plaintiff because the non-party company did not pay the overdue electricity charges to the non-party company.

However, the court below's decision that there is an error of law in the order of reason does not constitute a ground for dismissal of rights under Article 11 (1) of the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings, and therefore, the part of the court below is no longer reasonable. Even if the court below knew that the payment was made at will despite the fact that the payer had no obligation, if there are circumstances such as forced repayment or forced repayment to avoid de facto damage caused by the refusal of payment, etc., if it can be seen that the payment was made against his own free will, the payer shall not lose his right to request the return of the payment (see, e.g., Supreme Court Decision 4293Hun-Ga208, Sept. 29, 196; 67Da1683; 76Da212, Dec. 14, 1976; 2000Da17847, Sept. 26, 197).

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 Park Jong-dong (Presiding Justice)