(a) Effect of set-off or set-off of the claim, the extinctive prescription of which expires;

(b) Time and method of calculating unjust gains, and current presumption of pecuniary gains;

(a) Even if the claim the extinctive prescription of which has expired, if it was possible to offset before the completion of such prescription, that creditor shall be entitled to offset, and the effect of offset shall be deemed to have expired as to an equal amount when each obligation can be offset; and

(b) In case where a person gains, without any legal cause, any profits accruing from the property or services of another person and thereby causes damage to the latter, if the acquisition is not subject to any legal limitation as to the time and method of calculating the profits, and such profits are money, it shall be presumed that the said money exists, regardless of whether the person who acquired it has consumed it.

Articles 492, 493, and 748 of the Civil Act

B. Supreme Court Decision 69Da1093 Decided September 30, 1969

[Judgment of the court below]

Attorney Kim Won-won, Counsel for the plaintiff-appellant of social welfare foundation

Seoul High Court Decision 85Na2872 delivered on February 17, 1987

The appeal is dismissed.

The costs of appeal are assessed against the plaintiff.

The Plaintiff’s attorney’s ground of appeal is examined.

1. On the first ground for appeal

According to the reasoning of the judgment of the court below, the court below held that the plaintiff entered into a sales contract with the defendant to purchase the down payment and the intermediate payment only on the ground that the plaintiff paid the down payment and the intermediate payment without the ownership transfer registration, and obtained profits equivalent to 5,950,160 won from the land in this case without the ownership transfer registration, and thereby inflicted losses on the defendant. Meanwhile, the above sales contract between the plaintiff and the defendant was concluded on the condition of the disposal permission of the Minister of Health and Welfare, who is the competent Minister, since the land in this case was all the basic property of the defendant corporation, the above sales contract between the plaintiff and the defendant was concluded on the condition that the disposal permission for three times or more was made on November 25, 1975, and the above sales contract becomes effective due to the non-performance of the condition, and it is just to determine that the extinctive prescription of the defendant's claim for the return of the above claim against the plaintiff in this case, which was completed by set-off against the plaintiff's claim for the above set-off after the expiration of the extinctive prescription period of the above claim for return against the plaintiff's claim.

2. On the second ground for appeal:

In a case where a person gains a profit from another person's property or labor without any legal ground and causes a loss to another person, there is no special legal restriction as to the timing and method for calculating the amount of profit, and in a case where the gain is pecuniary gain, the money is presumed to exist regardless of whether the person who acquired it consumed it (see Supreme Court Decision 69Da1093 delivered on September 30, 1969). Thus, in calculating the amount of unjust enrichment obtained from the land of this case by the plaintiff, the court below ordered a certified appraiser to appraise the amount of the sand collected as of the time of the collection, to calculate the market price for the amount of the sand collected as of the time of the collection, and to calculate the expenses required for the collection, to regard the difference as the amount of unjust enrichment, and therefore, it is justified to determine that the damage equivalent to the same amount was inflicted on the defendant who is the land owner, and there is no error in the misapprehension of legal principles as to the calculation of the amount of unjust enrichment as pointed out.

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

Justices Park Jong-dong (Presiding Justice)