[1] The scope of the appellate court's judgment in a case where several claims are selectively joined in the first instance court, and one of them is declared to be accepted and the defendant files an appeal

[2] The meaning of "illegal cause" under Article 746 (a) of the Civil Code, which is prohibited from claiming a return of unjust enrichment

[3] The validity of a special agreement under which a person who received performance after illegal consideration has made a separate agreement to return the performance itself or the substitute for the performance (i.e., the validity in principle) and the standard for determining whether the return agreement itself becomes null and void and the burden of proof is to be borne (=beneficiary)

[1] When several claims are selectively joined in the court of first instance and one of them is declared to be cited in a judgment of admitting one claim, and the defendant files an appeal, the remaining claims which the court of first instance did not judge are also transferred to the appellate court, and the appellate court has the scope of adjudication in the appellate court. Thus, when the appellate court accepts the plaintiff's claim, it may arbitrarily select one of the several claims selective joined, and if the plaintiff's claim is dismissed, it shall be determined on the whole selective claims

[2] The "illegal cause" as stipulated in Article 746 of the Civil Code refers to a cause for the prohibition of a claim for return of unjust enrichment, where the act causing it violates good morals and other social order. The act of anti-social order which becomes null and void under Article 103 of the Civil Code includes not only the case where the contents of the rights and obligations, which are the object of the juristic act, violate good morals and other social order, but also the case where the contents themselves, even though they are not in the anti-social order, has the nature of anti-social order because they are legally forced or they are associated with social conditions or monetary consideration, and the motive of the juristic act as indicated or known to the other party

[3] Unlike the case where a person who received performance after illegal consideration claims the return of the performance itself or in lieu of the performance under a separate agreement with the act causing the performance, the agreement itself is valid unless the return agreement itself is null and void contrary to social order, unlike the case where the person who made the performance for illegal consideration claims the return of the unjust enrichment. Here, whether the return agreement itself becomes null and void shall be determined by comprehensively taking into account all the factors to determine whether the performance for illegal consideration was in violation of Article 103 of the Civil Act, including the background leading up to the original performance of the return agreement itself, the degree of illegality of both parties, and the process of concluding the return agreement. On the other hand, the beneficiary must prove that the return agreement

[1] Articles 253, 415, and 416 of the Civil Procedure Act / [2] Articles 103 and 746 of the Civil Act / [3] Articles 103 and 746 of the Civil Act, Article 288 of the Civil Procedure Act

[1] Supreme Court Decision 2006Da7587, 7594 decided Apr. 27, 2006 (Gong2006Sang, 901) / [2] Supreme Court Decision 2004Da27488, 27495 decided Sep. 3, 2004 (Gong2004Ha, 1650), Supreme Court Decision 2005Da23858 decided Jul. 28, 2005 (Gong2005Ha, 1421)

Plaintiff (Law Firm KEL, Attorneys Choi Jong-ro et al., Counsel for the plaintiff-appellant)

Defendant (Seoul District Court Decision 200Na1548 delivered on August 2, 200

Seoul High Court Decision 2008Na9503 decided Dec. 30, 2008

Of the part against the plaintiff in the judgment below, the part against the plaintiff 2 billion won and its delay damages are reversed, and that part of the case is remanded to the Seoul High Court. The remaining appeal by the plaintiff is dismissed.

We examine the grounds of appeal.

1. Regarding ground of appeal No. 1

When several claims are selectively joined in the court of first instance, and the defendant files an appeal after a judgment of admitting one of them is rendered, the remaining claims for which the court of first instance did not judge are also transferred to the appellate court, and the appellate court has the scope of adjudication in the appellate court. Thus, in a case where the appellate court cites the plaintiff's claim, it may decide on one of several selective claims that have been selectively joined (see Supreme Court Decision 2006Da7587, 7594, Apr. 27, 2006). However, if the plaintiff's claim is all dismissed, it shall be determined as to the whole of selective claims

According to the records, the plaintiff sought a reimbursement of KRW 2.2 billion against the defendant, and as the cause of the claim, ① a tort claim by deception, ② a claim for unjust enrichment, ③ a return of unjust enrichment, and ③ a claim under a return agreement were selectively joined. The first instance court partly accepted a claim under a return agreement, and dismissed a claim for damages arising from a tort and a claim for unjust enrichment, and only the defendant appealed. The court below revoked the first instance judgment as to this part, and dismissed the plaintiff’s claim on the ground that only the part of the claim under the above return agreement was subject to adjudication, and subsequently dismissed the plaintiff’s claim on the ground that the above return agreement was seeking the return of illegal consideration. The court did not render any judgment on

However, as long as the defendant appealed against the judgment of the court of first instance, the whole selective claims of this case were transferred to the court below, which is the appellate court, and all of the selective claims were subject to adjudication. Thus, the court below erred by misapprehending the legal principles as to the selective consolidation of claims and the measures which did not make any judgment as to the claim for damages arising from tort and the claim for return of unjust enrichment, and omitting judgment. However, it is clear that the plaintiff's claim for damages and the claim for return of unjust enrichment should be dismissed as seen below, and it cannot be said that the omission of judgment affected the conclusion of the judgment. Accordingly, the plaintiff's assertion on this point is without merit.

2. As to the grounds of appeal Nos. 2 and 3

According to the records, the evidence submitted by the plaintiff (in particular, the statement of Gap evidence Nos. 25 through 28 and the testimony of non-party No. 1 by the witness of the first instance trial) alone is insufficient to recognize the fact that the defendant deceivings the plaintiff to exchange old currency in collusion with the non-party No. 2 as the plaintiff's assertion, and it is clear that the plaintiff's claim for damages should be rejected because there is no other evidence to acknowledge it.

Therefore, although the court below did not decide on the claim for damages caused by tort, it did not affect the conclusion of the judgment, the plaintiff's assertion on this point cannot be accepted.

3. As to the grounds of appeal Nos. 4 and 5

The term "illegal cause" under Article 746 of the Civil Act means a cause which causes the act to be caused to contravene good morals and other social order (see Supreme Court Decision 2004Da27488, 27495, Sept. 3, 2004, etc.). An act of anti-social order null and void under Article 103 of the Civil Act not only violates good morals and other social order, but also goes against the contents of the rights and obligations which are the object of the juristic act, and its contents themselves are not contrary to social order. Even though they are not contrary to social order, they are legally enforced or they are associated with the conditions or monetary consideration that are contrary to social order and are contrary to social order (see Supreme Court Decision 2005Da23858, Jul. 28, 2005, etc.).

According to the records, the plaintiff attempted to exchange USD 200 from 199 to 200, or attempted to exchange the bonds held by the former political parties. After that, the non-party 2 introduced the defendant to attempt to exchange the old currency held by the former political parties while explaining the exchange of the old currency. ② The defendant delivered KRW 2 billion to the plaintiff for three times from March 29, 200 to April 3, 200 without the plaintiff's above intent, ③ the plaintiff's request to exchange the above funds with the above KRW 200,000,000,000,000 to the non-party 200,000,000,000,000 won, which was received from the non-party 2 through the non-party 2's request to exchange the funds with the non-party 200,000,0000,000 won, and the defendant could return the funds received from the plaintiff 200,000,000 won.

According to the above facts, since it is clear that the defendant's total amount of KRW 2 billion received through three times in 2000 is political funds, the plaintiff's claim for the return of unjust enrichment on this part on the premise that the above money is the exchange fund of old currency is rejected. Meanwhile, according to the above legal principles and the above facts, around March 2002, the defendant borrowed 1.2 billion won from the plaintiff for the exchange with the non-funds created illegally by the old political right constitutes a case where the motive for the purpose or indication is contrary to good morals and other social order. Furthermore, in light of the plaintiff's purpose of lending and the circumstances leading up to the defendant's participation, etc., the illegal cause is limited to the defendant who is the beneficiary, or the defendant's illegal nature is significantly larger than the plaintiff's illegal nature. Thus, this part of the plaintiff's claim for return

Therefore, although the court below did not decide on the claim for return of unjust enrichment, it did not affect the conclusion of the judgment, and the plaintiff's assertion on this point cannot be accepted in all.

4. Regarding ground of appeal No. 6

Unlike the case where a person who received payment after illegal consideration claims the return of unjust consideration in itself or in lieu of the performance under a separate agreement from the act of the cause of performance, the agreement itself is valid unless the return agreement itself is null and void contrary to social order. Here, whether the return agreement itself becomes null and void shall be determined by comprehensively taking into account all the factors to determine the violation of Article 103 of the Civil Act, including not only the original purpose of the return agreement itself, but also the developments leading up to the return agreement itself, the degree of illegality of both parties, and the process of concluding the return agreement. Meanwhile, the beneficiary must prove that the return agreement is null and void in violation of social order.

According to the reasoning of the first instance judgment as cited by the lower court and the reasoning of the lower judgment, the lower court determined that the Defendant was ex post facto aware of the total amount of KRW 3.2 billion received in four times in 2000 and 2002 as the nominal exchange fund, and that the above KRW 2 billion was also changed into the nominal exchange fund. However, as the Defendant became unable to hold the above money as the objective of exchanging the nominal currency was impossible, the Defendant entered into an agreement for return without any choice as it was no longer able to hold it. Accordingly, it is reasonable to deem that the claim based on the above return agreement is also seeking the return of illegal consideration. Accordingly, the lower court revoked the part of the first instance judgment against the Defendant and dismissed the Plaintiff’s claim.

According to the above legal principles and the above facts, the judgment of the court below relating to KRW 200 million which was not returned among KRW 1.2 billion borrowed from the plaintiff with the exchange funds of old cash around March 2002 is just, and there is no error in the misapprehension of legal principles as to the validity of the return agreement and the violation of judicial precedents as otherwise alleged in the ground of appeal.

However, since the nature of the political funds received by the defendant in 200 billion won cannot be deemed to have been changed to the old currency exchange fund ex post due to the fact that the defendant participated in the plan for the exchange of old currency by the non-party 2, etc., and there is no evidence to acknowledge that the plaintiff and the defendant agreed to the above KRW 2 billion as the old currency exchange fund, it is reasonable to deem that the funds are political funds, and further, there is no assertion or proof as to the fact that the agreement to return the funds that the defendant received in 2000, and that the funds that the defendant illegally received in 200 are invalid in violation of social order. Thus, the defendant is obligated to pay to the plaintiff the funds under the agreement for the refund of the political funds amounting to KRW 2 billion.

Nevertheless, the court below accepted the defendant's defense that the above claim of KRW 2 billion based on the return agreement constitutes the return of illegal consideration items under the premise that it is funds for exchange of old currency, which are received as political funds, is erroneous in the misapprehension of legal principles as to Article 746 of the Civil Code and in the misapprehension of the rules of evidence, which affected the conclusion of the judgment. Thus, the plaintiff's assertion in this part is with merit

5. Conclusion

Therefore, the part of the judgment of the court below against the plaintiff is reversed, and that part of the case is remanded to the court below for a new trial and determination. The remaining appeal by the plaintiff is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Hong-hoon (Presiding Justice)